Tag: GDPR

Spain publishes new data protection law

11. December 2018

On December 6, 2018, the new Spanish data protection law was published in the “Boletín Oficial Del Estado”. The “Ley Orgánica de Protección de Datos Personales y Garantía de los Derechos Digitales” (Organic Law on Data Protection and Digital Rights Guarantee) has been approved with 93% parliamentary support and implements the GDPR into national law.

The new law contains a number of regulations that will affect data processing operations. For example that the consent of a data subject is not enough to legitimate the processing of special categories of data if the main purpose is e.g. to identify an individual’s racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership or genetic data.

The law also includes a list of cases in which entities must appoint a data protection officer for example entities that operate networks and provide electronic communications services, education centres and public and private universities. All businesses have up to 10 days after (mandatory or voluntary) appointing a data protection officer to notify the Spanish Data Protection Authority of that fact.

However, one of the biggest changes is the introduction of new digital rights such as the right to universal access to the internet; the right to digital education; the right to privacy and use of digital devices in the workplace; the right to digital disconnection in the workplace; the right to privacy in front of video surveillance devices and sound recording at work; the right to digital will.

EDBP: Guidelines on the territorial scope of the GDPR

29. November 2018

As the European Data Protection Board (EDPB) announced, the board adopted new draft guidelines on the territorial scope of the General Data Protection Regulation (GDPR). The goal of the guidelines is to “provide a common interpretation of the territorial scope of the GDPR and provide further clarification on the application of the GDPR in various situations”. The territorial scope is laid down in Article 3 GDPR.

In the meantime, the EDPB published a version of the guidelines for public consultation.

The guidelines cover the following topics:

  • Application of the establishment criterion – Art 3 (1)
  • Application of the targeting criterion – Art 3 (2)
  • Processing in a place where Member State law applies by virtue of public international law
  • Representative of controllers or processors not established in the Union

The guidelines not only describe and clarify the regulatory content of Article 3 GDPR. It also provides various examples from a practical point of view in order to simplify the issue. For controllers and processors of personal data, it is of significant relevance to know whether one falls under the scope of the GDPR considering the legal and possible financial consequences.

Therefore, legal terms should be as clear as possible. Already on the first pages, an example for the necessity to clarify and specify the regulatory content of Art 3 GDPR can be found. The EDPB points out, that the notion “establishment” (unlike the notion “main establishment”, which is defined in Article 4 (16) GDPR) is not defined in Article 3 GDPR, resulting in an attempt to clarify the term.

Category: GDPR
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Microsoft violates the GDPR on a massive scale

20. November 2018

A Data Protection Impact Assessment (DPIA) outsourced by the Dutch Ministry of Justice and Security, concluded that Microsoft collects and stores personal data of Office users on a large scale without informing them. According to this report, Microsoft thus violates the General Data Protection Regulation (GDPR) on a massive scale.

The DPIA was carried out to probe the use of Microsoft Office in the public sector. Most of the Dutch authorities use Microsoft Office 2016, Office 365 or an older version. The Dutch judiciary, police, various ministries and tax offices use Word, Excel, Outlook and PowerPoint. The DPIA found that Microsoft not only collects and stores personal data but also send them to the US. In addition, users are not informed and it is not offered to switch off the collection or to see what data are collected. The Assessment outlined eight different risks and possible risk mitigating measures. One example is the “Lack of Transparency”. A possible measure recommended for Microsoft is the public documentation and the implementation of a data viewer tool because at the moment the content of the diagnostic data (i.e. “all observations stored in event logs about the behaviour of individual users of the services”) is not accessible.

Microsoft stated that -for the examined Office versions- between 23,000 and 25,000 event logs are sent to Microsoft servers and that 20 to 30 development teams analyse the data. The company agreed to change its practices by April 2019 and until then offers “zero exhaust” settings to shut down the data collection. A Microsoft spokesperson told The Register: “We are committed to our customers’ privacy, putting them in control of their data and ensuring that Office ProPlus and other Microsoft products and services comply with GDPR and other applicable laws.”

In addition to applying the new settings, the DPIA encourages users to deactivate Connected Services and Microsoft’s data sharing system, not use the web-based Office 365, SharePoint, or OneDrive, delete the directory of the system, and consider using alternative software.

Privacy International accuses seven companies of violating the GDPR

13. November 2018

On November 8th, Privacy International – a British non-governmental organisation – has filed complaints against seven data brokers (Axiom, Oracle), ad-tech companies (Criteo, Quandcast, Tapad) and credit referencing agencies (Equifax, Experian) with data protection authorities in France, Ireland and the UK.

Privacy International accuses those companies of violating the GDPR: They all collect personal data from a wide variety of sources and merge them into individual profiles. Therefore, information from different areas of an individual’s life flow together to create a comprehensive picture e.g. online and offline shopping behaviour, hobbies, health, social life, income situation.

According to Privacy International, the companies not only deal with the collected data, but also with the conclusions they draw about their data subjects: Life situation, personality, creditworthiness. Among their customers are other companies, individuals and governments. Privacy International accuses them to violate data protection principals such as transparency, purpose limitation, data minimisation, integrity and confidentiality.

Furthermore, the companies have no valid legal basis for the processing of personal data, in particular for the purpose of profiling. According to Privacy International, where those companies claim to have the consent of the data subjects, they cannot prove how this consent was given, nor that the data subjects voluntarily provided it after sufficient and clear information.

“Without urgent and continuous action, data will be used in ways that people cannot now even imagine, to define and manipulate our lives without us being to understand why or being able to effectively fight back,” Frederike Kaltheuner, Privacy International’s data exploitation programme lead, said.

With its complaint, Privacy International takes advantage of a new possibility for collective enforcement of data protection created by the GDPR. The Regulation allows non-profit organisations or associations to use supervisory procedures to represent data subjects (Art. 80 GDPR).

400,000€ fine for a Portuguese hospital

24. October 2018

The Portuguese data protection supervisory authority CNPD (Comissão Nacional de Protecção de Dados) recently announced that the hospital Barreiro Montijo is to pay a fine of 400,000€ for incompliancy with the EU General Data Protection Regulation (GDPR). This is the first time that a high fine has been imposed in Europe based on the new GDPR framework of fines.

According to Portuguese newspaper Público, the hospital has violated the GDPR by allowing too many users to have access to patient data in the hospital’s patient management system, even though they should only have been visible to medical doctors. In addition, too many profiles of physicians have been created in the hospital system. The CNPD discovered that 985 users with the access rights of a medical doctor were registered, although only 296 physicians were employed in 2018.

The hospital now wants to take legal action against the fine.

Belgium publishes new data protection law

12. September 2018

On September 5 2018, the new data protection law (“Law of 30 July”) was published in the Belgian Official Gazette (“Belgisch Staatsblad”) and entered into force with this publication.

After the “Law of 3 December 2017”, which replaced the Belgian Privacy Commission with the Belgian Data Protection Authority (“Gegevensbeschermingsautoriteit”), the Law of 30 July is the second law that implements the General Data Protection Regulation (GDPR).

The laws regulate various essential areas of data protection. New regulations are for instance, the reducing of the age of consent from 16 (as regulated in GDPR) to 13 years old for information society services or the requirement to list persons who have access to genetic, biometric and health-related data. Therewith, Belgium has also made use of the possibility to deviate from the GDPR in different scopes.

With the law of 30 July, Belgium has thus completed the incorporation of the GDPR into national law. The Law is available in French and Dutch.

Category: Belgium · GDPR
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WP 29 adopts guidelines on transparency under the GDPR

21. December 2017

The Article 29 Working Party (WP 29) has adopted guidelines on transparency under the General Data Protection Regulation (GDPR). The guideline intends to bring clearance into the transparency requirement regarding the processing of personal data and gives practical advice.

Transparency as such is not defined in the GDPR. However, Recital 39 describes what the transparency obligation requires when personal data is processed. Providing information to a data subject about the processing of personal data is one major aspect of transparency.

In order to explain transparency and its requirements, the WP 29 points out “elements of transparency under the GDPR” and explains their understanding of these. The following elements are named and described:

– “Concise, transparent, intelligible and easily accessible”
– “Clear and plain language”
– “Providing information to children”
– “In writing or by other means”
– “..the information may be provided orally”
– “Free of charge”

In a schedule, the WP 29 lists which information under Art. 13 and Art. 14 GDPR shall be provided to a data subject and which information is not required.

Many companies have not started preparing for the GDPR

27. June 2017

The General Data Protection Regulation (GDPR) will be applicable to all EU Member States from May 25th 2018. The GDPR will not just apply to EU companies, but also to non-EU companies that have dealings with data subjects that are located in the EU (see also Art. 3 (2) GDPR).

Companies, in specific, that fall under the regulations of the GDPR should be prepared to fulfil the requirements that are stated by the GDPR, due to the risk of an imposition of a fine if they fail to comply with the GDPR. This is in particular relevant since the fines for infringements of the GDPR have increased significantly (see also Art. 83 GDPR).

The implementations that companies have to make to comply with the GDPR involve high expenses and probably will be more time consuming than expected in most cases, depending on the size and complexity of the company. Especially the time factor has to be considered since it is less than a year left until May 2018.

However, according to a report of TrustArc, 61 % of the asked companies have not yet started with the implementation of their GDPR compliance programs.

TrustArc interviewed 204 privacy professionals from companies of different industries that will fall under the GDPR. These companies were divided into three categories based on the count of their employees: 500-1000 employees, 1000-5000 employees and more than 5000 employees.

23 % stated that they have started with the necessary implementations, 11 % that the implementations are driven forward and just 4 % stated that they had finished all necessary implementations to reach GDPR compliance.

The Report also shows the cost that companies expect to be need to implement what will be necessary to comply with the GDPR. Overall, 83% expect that their expenses will be in the six figures.

Article 29 WP will release guidelines on the GDPR by the end of 2016

26. October 2016

As Bloomberg reports, the Article 29 WP will provide guidance on the GDPR soon. Isabelle Falque-Pierrotin, Chairwoman of the CNIL as well as of the Article 29 WP, acknowledged that the GDPR text is ambiguous in some aspects. Therefore, these guidelines aim at serving as an operational toolbox.

Amongst others, the guidance to the GDPR shall refer to the following aspects:

  • The designation of the leading Supervisory Authority in case of complaints or in relation to other procedures. Moreover, aspects of the bilateral cooperation and competence to resolve disputes by the Supervisory Authorities and the European Data Protection Board shall be clarified.
  • Guidance on the figure of Data Protection Officers is one of the priorities of the Article 29 WP, as it will play an essential role in companies on achieving GDPR compliance.
  • The right to data portability has been regulated for the first time in the GDPR. This right will allow data subjects to access their data and transfer data to other data controllers, for example upon the change of telephone provider. The guidance should focus on its scope and implementation.
  • The standard by which the proof of consent will take place, will have to be specified. This is especially important for small and medium-sized companies, for which a “simple pedagogical tool” will be developed.
  • A formal guidance on the Privacy Shield will not take place until the EU Commission has reviewed its functioning after the first year, this is summer or early fall 2017.

At the moment, the Article 29 WP remains neutral with regard to the Brexit. However, Falque-Pierrotin remarked that the Privacy Shield may be also useful in UK regarding international data flows with the U.S.A.

Further guidance is also expected in 2017, especially regarding topics such as the EU-U.S. Privacy Shield and the implication of the Brexit in privacy issues.

UK Data Protection Commissioner speaks about “Brexit” and the GDPR

5. October 2016

Last week, Elizabeth Denham, held her first speech as UK Information Commissioner (ICO). In this speech she referred, amongst others, to the effects of the Brexit with regard to the application of the GDPR.

Denham remarked that the GDPR involves the modernization of European Data Protection and the necessity of these new rules in order to ensure cross-border commerce and the protection of individuals. As the GDPR may be applicable before the UK has left the EU, she ensured that the ICO will keep on providing guidance and advice on the GDPR.

Furthermore, she stated that even after the UK has formally left the EU, flows of personal information will be still necessary, so that the level of data protection in the UK should be essentially equivalent to the one in the EU. Therefore, she encourages businesses to improve and adapt their practices to the GDPR.

Category: GDPR · UK
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