Category: EU Commission

Update on ePrivacy Regulation

12. June 2018

The council of the European Union’s Bulgarian presidency has released a progress report on the draft ePrivacy Regulation ahead of a council meeting June 8th, 2018.

The ePrivacy Regulation (Regulation on Privacy and Electronic Communications) should replace the current ePrivacy Directive and was originally intended to enter into force together with the General Data Protection Regulation (GDPR) on May, 25th 2018.

The report offers several updates including its scope and link to the GDPR, processing of electronic communications content and metadata, among others. Latter mentioned has been one of the main concerns of the Member States. The balance between privacy and innovation regarding processing of metadata seems to be a key aspect of the ePrivacy Regulation.

Furthermore, significant changes of privacy settings according to the future Art. 10 are important for the Commission. The providers of software are only obliged to inform the end-users about the settings and the way the end-users may use them, at the time of installation or first usage and when updates change the privacy settings.

The report ends with three questions for the policy debate at the TTE Council on June 8th. Among others, the versions relating to the permitted processing of metadata and the protection of terminal equipment and privacy settings are open for discussion if it is an acceptable basis to move forward.

WP29 Guidelines on the notion of consent according to the GDPR – Part 2

3. April 2018

Continued from the article about the Working Party 29 (WP29) guidelines on consent, additional elements of the term should be considered as consent plays a key role for the processing of personal data.

The GDPR requires consent to further be specific, i.e. the data subject must be informed about the purpose of the processing and be safeguarded against function creep. The data controller has to, again, be granular when it comes to multiple consent requests and clearly separate information regarding consent from other matters.

In case the data controller wishes to process the data for a new purpose, he will have to seek new consent from the data subject and cannot use the original consent as a legitimisation for processing of further or new purposes.

Consent will also be invalid if the data controller doesn’t comply with the requirements for informed consent. The WP29 lists six key points for consent to be informed focussing on the aspect that the data subject genuinely needs to understand the processing operations at hand. Information has to be provided in a clear and plain language and should not be hidden in general terms and conditions.

Furthermore, consent has to be an unambiguous indication of wishes, i.e. it must always be given through an active motion or declaration. For example, the use of pre-ticked opt-in boxes is invalid.

However, explicit consent is required in situations where serious data protection risks emerge such as the processing of Special categories of data pursuant to Art. 9 GDPR.

In general, the burden of proof will be on the data controller according to Art. 7 GDPR, without prescribing any specific methods. The WP29 recommends that consent should be refreshed at appropriate intervals.

Concerning the withdrawal of consent, it has to be as easy as giving consent and should be possible without detriment.

The WP29 also recommends that data controllers assess whether processing of data is appropriate irrespective of data subjects’ requests.

How is a company transferring data with a non-European company able to ensure the data-protection standard according to the General Data Protection Regulation (GDPR)?

21. March 2018

A trading deal between two companies often includes a high number of coincidentally transferred personal data. From the 25th May 2018 on the new GDPR regulates the data flow in the European Economic Area (EEA) that consists of all the members of the European Union, Iceland, Liechtenstein and Norway. The future status of Great Britain will be primarily the status of a third country.

Otherwise, business relationships to companies from non-EU or EEA States (like the USA, China, …) cannot guarantee the data protection standard of the GDPR automatically. Especially since the overruling of the “safe-harbour” agreement of the EU with the USA by the European Court of Justice (ECJ), every company that transfers data over the Atlantic is obligated to fulfil the data protection by itself. The European Commission (EC) recommends in its communication from the 10th January 2017 the use of so-called standard contractual clauses (SCC) or binding corporate rules (BCR), when an EU-based company transfers personal data to a non-EU based company or non-EU based entity of its corporate group.

This has a wide impact to the daily trade deals that are made all over Europe with third country companies. The EU recommends the data protection going hand in hand with the trading deals, to ensure the relatively high data protection level, which is based on Article 8 of the Charter of Fundamental Rights of the European Union. Especially until the ePrivacy-Regulation of the EU is not in force, every company has to ensure the standard of the GDPR by implementing a privacy policy, in which transfers of data to a third country has to be mentioned.

In conclusion, a company that trades with third country companies needs to enter a special data protection contract with the trading partner and needs to inform its clients by its privacy policy.

United Kingdom become a third country after Brexit

29. January 2018

Withdrawal of the United Kingdom from the Union and EU leads to United Kingdom become a third country.

The European Commission annouced, that on 30.03.2019, 00:00h (CET) the United Kingdom will no longer be member of the Union and EU, all Union and secondary law will cease to apply.

That means, tat all stakeholders processing personal data need to consider the legal repercussions of Brexit, beacuse as of the withdrawal date, the EU rules for transfer personal data to third countries apply. GDPR allows a transfer if the controller or processor provides appropriate safeguards.

Safeguards may be provided by:

  • Sandarad data protection clauses (SCC)
  • Binding corporate rules (BCR)
    • legally binding data protection rules approved by the competent data protection authority which apply within a corporate group
  • Condes of Conduct
    • Approved Codes of Conduct together with binding and enforceable commitments of the controller or processor in the third country
  • Certification mechanisms
    • Approved certification mechanisms together with binding and enforceable commitments of the controller or processor in the third country

Besides a transfer may take place based on consent, for the performance of a contract, for exercise of legal claims or for important reasons of public interest.

These procedures are already well-known to business operators beacuse they are uses today for the transfer of personal data to non EU-countries like the USA, Russia or China.

The decision is disappointing for everyone who were hoping for an adequate level of data protection in the United Kingdom.

Stakeholders should prepare for the requirements associated with recognition as a third country.

Category: EU Commission · European Union · GDPR · UK
Tags:

WP29 Guidelines on the notion of consent according to the GDPR – Part 1

26. January 2018

According to the GDPR, consent is one of the six lawful bases mentioned in Art. 6. In order for consent to be valid and compliant with the GDPR it needs to reflect the data subjects real choice and control.

The Working Party 29 (WP 29) clarifies and specifies the “requirements for obtaining and demonstrating” such a valid consent in its Guidelines released in December 2017.

The guidelines start off with an analysis of Article 4 (11) of the GDPR and then discusses the elements of valid consent. Referring to the Opinion 15/2011 on the definition of consent, “obtaining consent also does not negate or in any way diminish the controller’s obligations to observe the principles of processing enshrined in the GDPR, especially Article 5 of the GDPR with regard to fairness, necessity and proportionality, as well as data quality.”

The WP29 illustrates the elements of valid consent, such as the consent being freely given, specific, informed and unambiguous. For example, a consent is not considered as freely given if a mobile app for photo editing requires the users to have their GPS location activated simply in order to collect behavioural data aside from the photo editing. The WP29 emphasizes that consent to processing of unnecessary personal data “cannot be seen as a mandatory consideration in exchange for performance.”

Another important aspect taken into consideration is the imbalance of powers, e.g. in the matter of public authorities or in the context of employment. “Consent can only be valid if the data subject is able to exercise a real choice, and there is no risk of deception, intimidation, coercion or significant negative consequences (e.g. substantial extra costs) if he/she does not consent. Consent will not be free in cases where there is any element of compulsion, pressure or inability to exercise free will. “

Art. 7(4) GDPR emphasizes that the performance of a contract is not supposed to be conditional on consent to the processing of personal data that is not necessary for the performance of the contract. The WP 29 states that “compulsion to agree with the use of personal data additional to what is strictly necessary limits data subject’s choices and stands in the way of free consent.” Depending on the scope of the contract or service, the term “necessary for the performance of a contract… …needs to be interpreted strictly”. The WP29 lays down examples of cases where the bundling of situations is acceptable.

If a service involves multiple processing operations or multiple purposes, the data subject should have the freedom to choose which purpose they accept. This concept of granularity requires the purposes to be separated and consent to be obtained for each purpose.

Withdrawal of consent has to be possible without any detriment, e.g. in terms of additional costs or downgrade of services. Any other negative consequence such as deception, intimidation or coercion is also considered to be invalidating. The WP29 therefore suggests controllers to ensure proof that consent has been given accordingly.

(will be soon continued in Part 2)

One year Privacy Shield

7. November 2017

The EU-US Privacy Shield is intended to protect the data of EU citizens from the US scouting device. Critics, however, have serious doubts as to whether this is currently the case. The transatlantic data package has been in operation for over a year and has now undergone a first review. The Privacy Shield is the successor to the Safe Harbor Agreement, which was repealed in a sensational ruling by the European Court of Justice.

The purpose of the Privacy Shield is to achieve a similar level of data protection in the US as in the EU, so that the data of the EU citizens in the US are just as protected as here on land. In particular, it should be achieved:

the data should be safe from excessive mass surveillance by US authorities (eg the NSA),
an ombudsperson established in the State Department that EU citizens can contact directly,
no indefinite storage of personal data of EU citizens by companies.

2400 companies have been certified for the Privacy Shield since its introduction. These include industry giants like Amazon, Tesla, Facebook and Google. Therefore, the importance of the Privacy Shield as a data protection regulation can not be denied. In addition to the certification remain as a legal basis only standard contractual clauses.

The first review shows, however, that the Privacy Shield is still controversial and the central demands, such as the Ombudsman, have not yet been implemented by the US government. In addition, US President Trump has already shortly after taking office, the privacy of non-Americans by way of a decree.

Nevertheless, responsible EU Justice Commissioner Vera Journová is not dissatisfied with the first year. While it is warned that the Ombudsperson should be appointed as soon as possible, she is confident that the US is now taking the concerns of Europeans seriously.

However, critics continue to complain that too little is done to enforce existing claims and that the Privacy Shield does not meet the requirements set out in the Safe Harbor ruling.

European Commission: €110 million fine for Facebook

23. May 2017

According to an European Commission Press release from the 18 May 2017, Facebook was fined €110 million by the Commission for providing misleading information about the takeover of WhatsApp.

Facebook acquired WhatsApp in 2014. Back then Facebook informed the European Commission that it would not be able to establish reliable automated matching between the users of Facebook and WhatsApp. Two years later, in August 2016, Facebook announced an update to its terms of service and privacy policy. The update included the possibility to link phone numbers of WhatsApp users with their respective Facebook accounts.

According to the Press release and contrary to the statement given by Facebook during the merger process 2014, the Commission has found that the possibility of automated linking of Facebook and WhatsApp users already existed in 2014.

Commissioner Margrethe Vestager, who is in charge of the competition policy, said: “Today’s decision sends a clear signal to companies that they must comply with all aspects of EU merger rules, including the obligation to provide correct information.”

It is the first time that the European Commission has imposed a fine on a company for the provision of misleading information since the Merger Regulation came into force in 2004.

European Union’s justice commissioner Jourová threatens to suspend Privacy Shield

6. March 2017

Vera Jourová, the European Union’s justice commissioner, is willing to suspend Privacy Shield in case the Trump administration budges from the result of the negotiation between the Obama administration and the European Union.

The Privacy Shield pact was meant to replace the Safe Harbor decision of the European Commission that was overturned in October 2015 by the European Court of Justice (ECJ). The pact’s purpose is to enable the transfer of EU citizens’ personal data to the US while ensuring the protection of those data.

Concerns about the effectiveness of the Privacy Shield came up as President Trump passed an executive order in January 2017 saying “agencies shall, to the extent consistent with applicable law, ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.”

Although the US Department of Justice already affirmed the US’s commitment to the Privacy Shield, Jourová stays sceptical and wants to keep an eye on the US government’s stance. In case EU citizens’ personal data are not safe in the US Jourová will not hesitate to suspend the pact.

European Commission proposes new ePrivacy Regulation

10. February 2017

On January 10, the European Commission published a proposal for an ePrivacy Regulation. After the adoption of the General Data Protection Regulation (‘GDPR’), a new ePrivacy Regulation would be the next step in pursuing the European Commission’s Digital Single Market Strategy (‘DSM’).

If adopted, the ePrivacy Regulation will replace both the ePrivacy Directive (2002/58/EC) and the Cookie Directive (2009/136/EC). In contrast to a Directive that has to be implemented into national law by each EU Member State, a Regulation is directly applicable in all Member States. Thus a Regulation would support the harmonisation of the data protection framework.

What’s new?

Since 2009, when the ePrivacy Directive was revised last, important technological and economic developments took place. In order to adapt the legal framework to the reality of electronic communication, the scope of the proposed Regulation is widened to apply to the so called ‘over-the-top’ (‘OTT’) service providers. These OTT providers, such as WhatsApp, Skype or Facebook, run their services over the internet.

By ensuring the privacy of machine-to-machine communication, the Regulation also deals with the Internet of Things and thus seems not only to consider the current situation of electronic communication, but also to prepare for upcoming developments within the information technology sector.

Electronical communications data (metadata as well as content data) cannot be processed without complying with the requirements of the Regulation. Metadata can be processed, if necessary for mandatory quality of service requirements or for billing, calculating interconnection payments, detecting or stopping fraudulent, or abusive use of, or subscription to, electronic communication services.

Content data can be used for the sole purpose of the provision of a specific service to an end-user, if the end-user or end-users concerned have given their consent to the processing of his or her electronic communications content and the provision of that service cannot be fulfilled without the processing of such content or if all end-users concerned have given their consent to the processing of their electronic communications content for one or more specified purposes that cannot be fulfilled by processing information that is made anonymous, and the provider has consulted the supervisory authority.

Regarding the use of cookies, the end-users’ consent is still the basic requirement, except for first party non-privacy intrusive cookies. These cookies can now be used without the consent of the end-user. The proposed Regulation furthermore allows to use browser settings as consent.

In contrast to the draft of the Regulation leaked in December 2016, the official proposal does not contain the commitment to ‘Privacy by default’, which means that software has to be configured so that third parties cannot store information on or use information about a user’s device.

The Commission’s proposal of the Regulation just demands that software must offer the option to prevent third parties from storing information on or using information about a user’s device.

ePrivacy Regulation and GDPR

Both the ePrivacy Regulation and the GDPR are part of the above mentioned ‘DSM’. Several commonalities prove this fact. For instance, the fines in both Regulations will be the same. Furthermore, the EU Data Protection Authorities responsible for the enforcement of the GDPR will also be responsible for the ePrivacy Regulation.  This will contribute to the harmonisation of the data protection framework and increase trust in and the security of digital services.

What’s next?

After being considered and agreed by the European Parliament and the Council, the Regulation could be adopted by May 25th, 2018, when the GDPR will come into force. It is to see whether this schedule is practicable, considering how long the debate about the GDPR took.

European Commission releases proposal to complete data protection framework

13. January 2017

On January 10th 2017 the European Commission released a Proposal for a Regulation concerning the respect for private life and the protection of personal data in electronic communications.

The presented proposal pursues the implementation of the EU’s Digital Single Market strategy. The Digital Single Market strategy aims to increase trust in and the security of digital services. With the upcoming General Data Protection Regulation further legislative measures have to be implemented in order to build a coherent regulatory framework.

The proposed Regulation will repeal the Directive 2002/58/EC Regulation on Privacy and Electronic Communications, also known as the “E-Privacy Directive”, which insufficiently regards current technological developments. Especially so-called Over the Top communication services, such as the messenger services WhatsApp, Skype or Facebook Messenger, are not regulated by the E-Privacy Directive and lack sufficient privacy for its users. According to the proposed Regulation, the content of messages as well as metadata will have to remain confidential and / or anonymized unless the user consented otherwise.

In addition, the new rules set out a strategic approach relating to international data transfer. By engaging in so-called “adequacy decisions” the transfer of personal data will be simplified while a high level of privacy remains.

The proposed Regulation further contains rules to ensure that personal data, which is processed by EU institutions and bodies, is handled according to the measures of the General Data Protection Regulation.

Finally, since the nature of the Proposal is a regulation instead of a directive, it should have a stronger impact for both consumers and businesses.

Ideally the legislative process will be finalized by May 25th 2018, when the General Data Protection Regulation will enter into force.

Pages: 1 2 3 Next
1 2 3