The French DPA requests Facebook to comply with the French Data Protection Act

12. February 2016

On the 8th February, the French DPA (CNIL) announced that it issued a formal notice in which it gives Facebook Inc. and Facebook Ireland Limited 3 months to comply with the French Data Protection Act.

After Facebook informed about changes in its privacy policy at the beginning of 2015, a group formed by the French, the Belgian, the Dutch, the Spanish and the DPA of the German Federal State of Hamburg carried out online and on site audits in order to find out if the updated privacy policy is compliant with the respective data protection legislations.

These audits revealed several incompliances with the French Data Protection Act regarding Facebook´s data processing activities:

  • Facebook collects data of internet users that do not have a Facebook account by using cookies when these users visit a public Facebook page, such as public events or the page of a friend. As a result, the cookie provides Facebook with information about third-party websites with Facebook plug-in buttons, such as “like” button, that are visited by the user.
  • Sensitive data such as religious beliefs or sexual orientation are also processed by Facebook without prior explicit consent of the account holders.
  • Users are not informed in the sign up page about their rights as data subjects and the processing of their personal data.
  • Cookies are also set up in the Facebook website without informing users properly and obtaining their consent.
  • The company does not provide its users with tools to opt-out targeted advertising.
  • Data transfers to U.S. take place on the basis of the Safe Harbor Decision, although it was declared invalid by the ECJ in October 2015.

According to CNIL, this formal notice is not a sanction. However, if Facebook fails to rectify these incompliances within 3 months, the matter will be referred to the CNIL´s Select Committee in order to impose the corresponding sanction.

These findings are also being analyzed by the Belgian, the Dutch, the Spanish and the the DPA of the German Federal State of Hamburg within a cooperation framework in order to act accordingly.

Statement of the U.S. Department of Commerce on the „EU – U.S. Privacy Shield“

5. February 2016

Not only European negotiators and institutions have given their opinion on the EU – U.S. Privacy Shield, also the U.S. Department of Commerce and the FTC Commissioner, Julie Brill, have made a public statement on the on the advantages of the implementation of the Privacy Shield.

On the 2nd February, the U.S. Department of Commerce stated that the EU – U.S. Privacy Shield improves, on the one hand, the commercial oversight and enhances privacy protections and, on the other hand, it demonstrates the U.S. commitment to limitations on national security. The statement of the Department of Commerce remarks the cooperation between the FTC and EU Data protection Authorities and its commitment to review the Agreement on an annual basis. Also, it ensures that the U.S. Intelligence Community has described in writing the constitutional, statutory and policy safeguards applied to its operations.

The FTC offered a live webcast on the 4th February in which the EU – U.S. Privacy Shield was explained by FTC Commissioner Julie Brill. During the webcast the main aspects of the EU – U.S. privacy Shield were explained. Julie Brill remarked the commercial relevance of this agreement and the acknowledgement by U.S Authorities that the rights of the individuals and national security should be balanced.


Statement of the WP29 on the “EU – U.S. Privacy Shield”

4. February 2016

After the Press Conference held by Věra Jourová and Andrus Ansip from the European Commission about the proposal for a new agreement between EU and U.S. to carry out international data transfers, the WP29 met on the 2-3 February in order to discuss the consequences of the sentence from the ECJ and the future of international data transfers between EU and the U.S.

The WP29 has remarked that the following four guarantees should be ensured when international data transfers take place:

a) Transparency: the data subject whose data is processed should be informed so that he/she is able to foreseen the consequences of the data transfer.

b) Proportionality and necessity: the finality for which personal data is collected and accessed and the rights of the data subject should be balanced.

c) Independency of a control body that carries out checks in an effective and impartial manner.

d) Effective remedies: the individual should have the possibility to defend his/her rights before an independent body.

The WP29 will also analyze the existing mechanisms to carry out international data transfers, which currently can only take place if Standard Contractual Clauses or Binding Corporate Rules (BCR) are used. In any case, European DPAs will examine data transfers on a case-by-case basis.

However, the WP29 is still looking forward to receive the relevant documents related to the EU – U.S. Privacy Shield in order to analyze its content and to determine to which extent the agreement is legally binding.


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The “EU – U.S. Privacy Shield”, a new agreement for international data transfers

3. February 2016

After continuous negotiations during the last months to agree on a new framework for international data transfers, since the ECJ invalidated the Safe Harbor Decision, Andrus Ansip (EU Commission Vice-President) and Věra Jourová (Commissioner) announced yesterday in a Press Conference that a new agreement (EU – U.S. Privacy Shield) to carry out international data transfers has been reached.

Under the EU – U.S. Privacy Shield, the following elements will be regulated:

  • Several redress possibilities will be guaranteed to EU citizens when data transfers to U.S. take place and companies, as first redress possibility, will have deadlines to resolve complaints.
  • The resolution includes a “multi-layered” approach in order to avoid that any complaints remain unresolved by offering different resolution mechanisms. Also the European DPAs will have the possibility to refer complaints to the U.S. Department of Commerce and to the Federal Trade Commission.
  • Companies will be subject to strong obligations regarding the processing of personal data imported from EU Member States. Particularly, personal data processed for HR purposes in the U.S. will have to comply with the decisions of EU DPAs.
  • It will be ensured that national authorities only have access to personal data from EU citizens in exceptional cases and subject to the principles of necessity and proportionality.
  • The figure of the “ombudsman” will be created, in order to make possible that EU citizens can complain regarding surveillance activities by national authorities.

This new framework should be reviewed in an annual basis, so that the rights of EU citizens regarding data protection are continuously ensured. This is an important step forward in comparison with the invalidated Safe Harbor Decision.

Although the main points of this agreement have been discussed, the written draft may take up to three months, as Commissioner Věra Jourová said. The Working Party 29 will advise the College of Commissioners on this issue before adopting the official decision. Additionally, the agreement will have to withstand scrutiny from the ECJ.

New Safe Harbor Agreement

2. February 2016

European officials and the U.S. agreed today on a new safe harbor agreement. The EU Article 29 Working Group had set a deadline until the end of January 2016 to find an alternative agreement, which was missed. The agreement still needs to be approved by the 28 member states. Further information on the new safe harbor agreement is expected after the EU Article 29 Working Group meeting, which is supposed to take place today and tomorrow.

28th January: Data Protection Day

29. January 2016

Yesterday, 28th of January, the 10th anniversary of the Data Protection Day was celebrated. This day was launched on April 2006 by the Committee of Ministers of the Council of Europe.

Several data protection authorities from different EU Member States and member institutions of the Council of Europe organized events in order to commemorate the Europe´s Convention 108 on the protection of personal data, the first binding document on this field at international level.

On this day, conferences, workshops and awareness activities take place, in order to discuss about the most current issues on data protection and IT security. This year the focus lied on international data transfers and cybersecurity.

Safe Harbor agreement unlikely by the end of January

27. January 2016

On 6th October 2015 the European Court of Justice has ruled, that the “safe harbor” agreement is invalid. Since then there is no legitimacy for transferring personal data outside of EU-territory. According to the statement of the EU data protection authorities assembled in the Article 29 Working Party, the parties involved were supposed to find an alternative agreement by the end of January 2016. Otherwise, EU data protection authorities would have to take all necessary and appropriate actions, which may include coordinated enforcement actions consequences to be drawn at European and national level.

The European Commission informed a committee of EU member countries during a session mid of January, that there has been no progress in the negotiations so far. According to sources, who took part at the meeting, a deal could still be made at the last minute. Other participants however entitled the deadline as “unrealistic” or “unlikely”.

The European Data Protection Supervisor (EDPS) Giovanni Buttarelli said that the January 31 date was a “legal fiction,” that “could not be fixed, because it would not have a legal basis.” “Even if some agreement was reached, it would be a political agreement,” he added. A final deal, which met all the criteria, “would take months,” he said.

The next meeting of the EU’s Article 29 Working Group will be on February 2. It is to expect, which measures will be taken against companies that still transfer data outside of the EU-territory based on the invalid safe harbor agreement.

Category: EU · Safe Harbor · USA

Proposal to create a U.S. privacy “ombudsman” to verify Safe Harbor compliance

26. January 2016

In a context where the Safe Harbor Decision has been declared invalid and the General Data Protection Regulation has entered into force, the European and American competent authorities are negotiating further mechanisms to carry out international data transfers in compliance with the current legislation.

According to Reuters, the U.S. has proposed creating the institution of the “ombudsman” as a component of the State Department. This institution shall handle with complaints from EU citizens regarding surveillance activities from American authorities,.verify that this surveillance activities are proportionate and that personal data transferred from the EU is accessed only in cases where national security is involved. However, EU negotiators have requested further details about this institution before the proposal is accepted.

Both negotiating parties, EU and U.S. authorities aim at reaching an agreement about the continuity and the legal basis to carry out data transfers to the U.S. by the beginning of February.

Ten relevant practical consequences of the upcoming General Data Protection Regulation

22. January 2016

After several negotiations, the European Parliament, the European Council and the European Commission finally reached a consensus in December 2015 on the final version of the General Data Protection Regulation (GDPR), which is expected to be approved by the European Parliament in April 2016. The consolidated text of the GDPR involves the following practical consequences:

1) Age of data subject´s consent: although a specific, freely-given, informed and unambiguous consent was also required according to the Data Protection Directive (95/46 EC), the GDPR determines that the minimum age for providing a legal consent for the processing of personal data is 16 years. Nevertheless, each EU Member State can determine a different age to provide consent for the processing of personal data, which should not be below 13 years (Arts. 7 and 8 GDPR).

2) Appointment of a Data Protection Officer (DPO): the appointment of a DPO will be mandatory for public authorities and for data controllers whose main activity involves a regular monitoring of data subjects on a large scale or the processing of sensitive personal data (religion, health matters, origin, race, etc.). The DPO should have expert knowledge in data protection in order to ensure compliance, to be able to give advice and to cooperate with the DPA. In a group of subsidiaries, it will be possible to appoint a single DPO, if he/she is accessible from each establishment (Art. 35 ff. GDPR).

3) Cross-border data transfers: personal data transfers outside the EU may only take place if a Commission decision is in place, if the third country ensures an adequate level of protection and guarantees regarding the protection of personal data (for example by signing Standard Contractual Clauses) or if binding corporate rules have been approved by the respective Data Protection Authority (Art. 41 ff. GDPR).

4) Data security: the data controller should recognize any existing risks regarding the processing of personal data and implement adequate technical and organizational security measures accordingly (Art. 23 GDPR). The GDPR imposes strict standards related to data security and the responsibility of both data controller and data processor. Security measures should be implemented according to the state of the art and the costs involved (Art. 30 GDPR). Some examples of security measures are pseudonymization and encryption, confidentiality, data access and data availability, data integrity, etc.

5) Notification of personal data breaches: data breaches are defined and regulated for the first time in the GDPR (Arts. 31 and 32). If a data breach occurs, data controllers are obliged notify the breach to the corresponding Data Protection Authority within 72 hours after having become aware of it. In some cases, an additional notification to the affected data subjects may be mandatory, for example if sensitive data is involved.

6) One-stop-shop: if a company has several establishments across the EU, the competent Data Protection Authority, will be the one where the controller or processor’s main establishment is located. If an issue affects only to a certain establishment, the competent DPA, is the one where this establishment is located.

7) Risk-based approach: several compliance obligations are only applicable to data processing activities that involve a risk for data subjects.

8) The role of the Data Protection Authorities (DPA): the role of the DPA will be enforced. They will be empowered to impose fines for incompliances. Also, the cooperation between the DPA of the different Member States will be reinforced.

9) Right to be forgotten: after the sentence of the ECJ from May 2014, the right to be forgotten has been consolidated in Art. 17 of the GDPR. The data subject has the right to request from the data controller the erasure of his/her personal data if certain requirements are fulfilled.

10) Data Protection Impact Assesment (PIA): this assessment should be conducted by the organization with support of the DPO. Such an assessment should belong to every organization’s strategy. A PIA should be carried out before starting any data processing operations (Art. 33 GDPR).


UK’s Information Commissioner demands prison penalties for serious data offences

22. July 2013

Information Commissioner Christopher Graham said, that people who misuse personal information should face tougher penalties, including the threat of prison in the most serious cases.

The Information Commissioner referred to a case in which a former manager of a health service based at a council-run leisure centre was prosecuted by the Information Commissioner’s Office for unlawfully obtaining sensitive medical information belonging to more than 2,000 people. The manager used the information, which he had sent to his personal email account, to approach patients to advertise a similar service he had set up.

The manager was  prosecuted under section 55 of the Data Protection Act and fined £3,000. He was also ordered to pay a £15 victim surcharge and £1,376.50 prosecution costs.

Mr. Graham issued following statement:

“Nobody expects that their health records will be taken and used in this way. The manager [name removed ] had been told about the need to keep patients’ details confidential, but he decided to break the law to benefit his new business. At very least, behaviour of this kind should be recognised as a ‘recordable offence’ which it isn’t now. For the most serious cases the current ‘fine only’ regime will not deter and other options including the threat of prison should be available. The necessary legislation for this is already on the statue book but needs to be activated. The government must ensure that criminals do not see committing data theft as a victimless crime and worth the risk.”

Category: UK
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