Category: EU

EU Commission: Draft for adoption of adequacy decision for Japan

6. September 2018

The EU Commission has drafted the adequacy decision for Japan including next steps Japan has to undertake in order to ensure protection for the transfer of personal data from the EU to Japan. This includes additional safeguards Japan should apply, as well as commitments regarding access to personal data by Japanese public authorities.

Japan has committed to implement several safeguards that are necessary for the protection of the transfer of personal data before the actual adoption of the adequacy decision. These include,

  • a set of rules providing additional safeguards for transferred personal data of EU individuals (addressing inter alia the topics protection of sensitive data and the further transfer of personal data from Japan to another third country),
  • safeguards concerning the access to personal data by Japanese public authorities for criminal law enforcement and national security purposes,
  • a complaint-handling mechanism for Europeans regarding the access of Japanese authorities to their personal data.

The Commissioner for Justice, Consumers and Gender Equality, Věra Jourová, said: “We are creating the world’s largest area of safe data flows. Personal data will be able to travel safely between the EU and Japan to the benefit of both our citizens and our economies. Our partnership will promote global standards for data protection and set an example for future partnerships in this key area.”

The next step in the adoption procedure of the adequacy decision is the European Data Protection Board (EDPB), which will be asked for his opinion.

Category: EU · EU Commission · General
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Luxembourg publishes two new Data Protection Laws

24. August 2018

On August 1st, 2018 the Luxembourg government adopted two new data protection laws implementing certain parts of the General Data Protection Regulation (Regulation (EU) 2016/679 – the “GDPR”) and repeals the former data protection law of 2002. Draft Bill Number 7184 and 7168 were adopted and complement the GDPR, which has been in force since 25 May 2018 throughout the European Union.

The newly implemented laws don’t add any further restrictions to the processing of personal data, but rather serve as implementing provisions required under GDPR.

The new Luxembourg Data Protection Law defines the organisation, missions and competence of the Luxembourg data protection authority (Commission nationale pour la protection des données – CNPD) and provides specific requirements or exceptions. The CNPD has been granted broad investigation powers. The CNPD receives for example the right to obtain access from any controller or processor to all personal data and information necessary to verify compliance under GDPR. The CNPD is also in charge to issue warning, orders and fines to any controller or processor who is not compliant under the provisions of the GDPR.

The second new law, the Luxembourg Law on Criminal Data Processing specifically relates to the protection of individuals with regard to the processing of personal data in criminal matters and national security.

The two laws should be read together, as they jointly extend the competences of the CNPD.

Starting with the new implementations, Luxembourg companies are discharged of the administrative burden of an active notification of personal data processing to the CNPD prior to processing personal data. However, companies should be ready to be controlled by the local regulator and therefore they are obliged to keep a record of the processing of personal data that is carried out under their responsibility.

The final versions were published on August 16th, 2018 in the Official Gazette of Luxembourg.

Database operators in Sweden exempt from GDPR

With the GDPR coming into effect, enterprises in Sweden will also be subject to complying with the European principles and adhering to the GDPR.

However, new amendments and changes to the country’s constitution will be required to harmonise existing laws.

Due to the fact that Sweden emphasizes freedom of press and speech, it will initially make exemptions in cases where elements don’t comply with its Freedom of the Press Act of 1766.

As a consequence, current laws give database operators a broad freedom to gather and release personal data enabling them to collect and distribute personal information from a broad range of sources, including the national tax office.

The database operators and online publishers Eniro, Ratsit and Hitta are some of the companies that will be exempt until an expert group has drafted new and stricter legislation regarding the processing of personal data by these.

It is expected that the relevant laws will be amended in the first half of 2019.

Japan and the EU are establishing an environment of data protection between its citizens (and companies)

18. July 2018

As part of the Economic Partnership Agreement (EPA), the European Union and Japan have signed the 17th July 2018, the two parties recognise each other’s data protection laws as equivalent. In this manner, personal data will flow in the future safely between the EU and Japan.

In Europe, a committee composed of representatives of the EU Member States has to give its consent and the European Data Protection Board (EDPB) publishes its opinion before the European Commission adopts the adequacy decision. Once the agreement is established, EU citizens and 127 Million Japanese consumers will benefit from international trading that includes the high privacy standards of the General Data Protection Regulation (GDPR).

Japanese companies now have to comply some safeguards to fulfil the European data protection level, like the protection of sensitive data, the requirements for transfer of data to a third country or the exercise of individual rights to access individual rights (compared to Art. 12 – 23 of the GDPR). The Japanese watchdog (PPC) will implement these rules as well as a complaint-handling mechanism to investigate and resolve complaints of European citizens concerning the data processing of Japanese controllers.

This agreement is a result of the communication Exchanging and Protecting personal data in a globalised world, announced by the Commission in January 2017.

The ICO intends to fine Facebook a maximum of £500.000

12. July 2018

The British Information Commissioner’s Office (ICO) intends to fine Facebook a maximum of £500,000 after investigating the Facebook/Cambridge Analytica case. Back then, the Investigation started because of allegations that information of about 50 million Facebook users were obtained by Cambridge Analytica without the data subject’s consents by the use of a personality-analysis app. Present estimate suggest that about 87 million users were affected, as the ICO reports.

As stated by the ICO, it intends to fine Facebook for two breaches of the Data Protection Act 1998. It is further said, that Facebook should have contravened the law by failing to safeguard people’s information and failing to be transparent regarding the harvesting of people’s data by others. Facebook, however, will have the possibility to respond to the Notice of Intent. Afterwards a final decision will be made.

Unlike the much higher fees (up to €20 million or 4% of their global annual turnover, whichever is higher) that might be imposed under the General Data Protection Regulation (GDPR), depending on the individual case, £ 500.000 is the maximum possible under the British Data Protection Act 1998. The reason that the Data Protection Act 1998 and not the General Data Protection Regulation was applicable is the time of the events, since they happened before the 25th May 2018, which was the time the General Data Protection Regulation became directly applicable in all member states.

Category: EU · USA
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The EEA EFTA States incorporate the General Data Protection Regulation (GDPR) soon

9. July 2018

On 20th of July 2018 the European Data Law will come into effect also in the three EFTA States (Iceland, Norway and Liechtenstein). This has been the result of the incorporation Agreement by the EEA Joint Committee in Brussels on July 6th 2018.

Before the GDPR becomes applicable throughout all three states, each of the states shall notify the agreement by a parliamentary process.

As usual for the EEA Joint Agreements, the EFTA States are obligated to implement the EU Regulation and they are affected by the Jurisdiction of the European Court of Justice (ECJ). The supervisory authority of the EFTA States also participates in the activities of the European Data Protection Board, without having the right to vote and to stand for election as chair or deputy chairs of the board.

Switzerland is not part of this agreement and has its own legal basis for data protection.

Data breach at Panini’s online service ‘MyPanini’

2. July 2018

According to a report in the magazine ‘Der Spiegel’, personal data and images of users who wanted to create Panini images with their own photos could be accessed by third parties.

The Italian scrapbook manufacturer for football images Panini has serious problems with the security of their online customer database. Through changing the browser’s URL, unauthorized persons could have accessed personal data of other customers, including pictures of minors. Therefore, the case can be considered as particularly serious.

Through its ‘MyPanini’ service, Panini offers fans the opportunity to upload photos with their own images and have these personalised images sent to them. Until a few days ago, logged in users could have also seen the uploaded images and personal data of other customers. Apparently the full name, the date of birth and partly even the place of residence of the customers are listed.

To a certain degree, the uploaded images showed children and young children from different countries in the private domestic environment, some even with their naked upper body.

The data breach was confirmed and has been known internally for days. Supposedly, the problem has been solved by a security update, but it is not possible to access the website at the moment.

It remains to be seen what financial consequences the data breach has for either Panini or the technical service provider. In accordance with new European General Data Protection Regulation (GDPR) infringements of the provisions can lead to administrative fines up to 10 000 000 EUR or up to 2% of the total worldwide annual turnover of the preceding financial year.

The French Constitutional Council ruled in favour of the new data protection law implementing the EU General Data Protection Regulation

20. June 2018

The Senators referred the recently adopted data protection law to the Constitutional Council (‘Conseil Constitutionnel’) to prevent its promulgation on time for the General Data Protection Regulation (GDPR) to enter into force on last May 25. Now that the law has overcome the constitutional obstacle, it is expected to be promulgated in the next days.

The decision of the Constitutional Council (Décision n° 2018-765 DC) on June 12 demonstrates that the senators questioned the constitutionality of a number of Articles, e.g. 1, 4, 5, 7, 13, 16, 20, 21, 30 and 36.

Initially, the validity of universal law was weighed against the objective of constitutionality in terms of legislative accessibility and intelligibility. The senators argued that the implementation with the provisions of the GDPR was not clear and could “seriously mislead” citizens about their rights and obligations with regard to data protection.
The Council did not endorse this reasoning, stating that the law was readable and that Article 32 of the law referred to actually empowered the Government to take the measures required “in order to make the formal corrections and adaptations necessary to simplify and ensure consistency and simplicity in the implementation by the persons concerned of the provisions bringing national law into compliance” with the General Data Protection Regulation.

Furthermore, the constitutionality of most of the above-mentioned Articles was established. Nonetheless, Article 13 of the law amends Article 9 of the current law, according to which personal data relating to criminal convictions and offences or related security measures may only be processed “under the control of an official authority” or by certain categories of persons listed in the law. However, according to the Council, it is only a reproduction of Article 10 of the GDPR, without specifying the categories of persons authorised to process such data under the control of the authority, or the purposes of such processing. The words “under the control of the official authority” are not specific enough and therefore unconstitutional. This terminology will not be found in the promulgated law.

For France this symbolises a major step forward to join the small circle of European countries that have succeeded in implementing the GDPR at a national level.

Under the new GDPR: Complaints against Google, Instagram, WhatsApp and Facebook

1. June 2018

On the 25th of May, the day the General Data Protection Regulation (GDPR) came into force, noyb.eu filed four complaints over “forced consent” against Google (Android), Instagram, WhatsApp and Facebook.

The complaints filed by the organisation (None Of Your Business) led by Austrian activist Schrems could result in penalties worth up to 7 billion euros. Max Schrems has been fighting Facebook over data protection issues for almost ten years. His earlier lawsuit challenged Facebook’s ability to transfer data from the European Union to the United States (“Safe Harbor”).

The activist alleged that people were not given a “free choice” whether to allow companies to use their data. Noyb.eu bases its opinion on the distinction between necessary and unnecessary data usage. “The GDPR explicitly allows any data processing that is strictly necessary for the service – but using the data additionally for advertisement or to sell it on needs the users’ free opt-in consent.” (See https://noyb.eu/wp-content/uploads/2018/05/pa_forcedconsent_en.pdf) The organisation also claims that under Art. 7 (4) of the GDPR forced consent is prohibited.

The broadly similar complaints have been filed in authorities in various countries, regardless of where the companies have their headquarters. Google (Android) in France (data protection authority: CNIL) with a maximum possible penalty in the amount of 3.7 billion euro although its headquarter is in the USA. Instagram (Facebook) in Belgium (DPA). WhatsApp in Hamburg (HmbBfDI) and Facebook in Austria (DSB). All of these last three have their headquarters in Ireland and could face a maximum possible penalty in the amount of 1.3 billion euro.

How to rule a Data Protection Impact Assessment (DPIA)?

9. May 2018

Pursuant to Art. 35 of the General Data Protection Regulation (GDPR) the controller of personal data shall carry out an assessment of the impact of the data processing that takes place in the controller’s responsibility. That means mostly, to anticipate the possible data breaches and to fulfil the requirements of the GDPR before the personal data is processed.

Even if the date of enforcement of the GDPR (25th May 2018) comes closer and closer, just a few of the EU member states are well-prepared. Only Austria, Belgium, Germany, Slovakia and Sweden have enact laws for the implementation of the new data protection rules. Additional to this legislation the national data protection authorities have to publish some advises on how to rule a DPIA. Pursuant to Art. 35 (4) sent. 2 GDPR these handbooks on DPIA’s should be gathered by the European Data Protection Board for an equal European-wide data protection level. The Board as well seems not to work yet, as the Article 29 Working Part (WP29) is still the official authority.

But at least, Belgium and Germany have published their DPIA recommendations and listed processes for which a DPIA is required, pursuant to Art. 35 (4) GDPR, and in which cases a DPIA is not required, see Art. 35 (5) GDPR.

For example, in the following cases the Belgian authority requires a DPIA:

  • Processing, that involves biometric data uniquely identifying in a space—public or private—which is publicly open,
  • Personal data from a third party that determines whether an applicant is hired or fired,
  • Personal data collected without given consent by the data subject (e.g. electronic devices like smart phones, auditory, and/or video devices),
  • Processing done by medical implant. This data may be an infringement of rights and freedoms.
  • Personal data that affects the vulnerable members of society (e.g., children, mentally challenged, physically challenged individuals),
  • Highly personal data such as financial statement; employability; social service involvement; private activities; domestic situation.
Category: Article 29 WP · Belgium · Data breach · EU · GDPR
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