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.

EU Adequacy Approach for Japan and South Korea

29. June 2018

These days the European Commission is focussing on talks with Japan and the Republic of Korea in order to advance the process towards mutual adequacy findings. Therefore,  the European Justice Commissioner Vera Jourová recently visited Japan’s Justice Minister, Yōko Kamikawa, and Commissioner of the Personal Information Protection, Haruhi Kumazawa, along with Korean Chairman of the Communications Commission Lee Hyo-seong to make progress on the approached adequacy deals. The engagement of all parties in allowing the free flow of personal data between the EU and Japan as well as the EU and South Korea started in 2017 by discussing to reaching an “adequacy decision“.

At the meeting in Tokyo, the two parties “took note of the significant progress achieved in the past month” referring, “in particular, [to] the agreement on solutions to bridging relevant differences between the two systems such as the Supplementary Rules, to be adopted by the Personal Information Protection Commission (PPC) following the public comment procedures, coupled with the Basic Policy on the Protection of Personal Information (Cabinet decision).” In addition, “they affirmed that the Personal Information Protection Commission and the European Commission will continue to consult each other with a view to finding mutually acceptable solutions whenever there is a need for cooperation with respect to personal data based on the framework for mutual and smooth transfer of personal data between Japan and the EU.”

In Seoul, Chairman Lee Hyo-seong and Commissioner Vera Jourová also held a very productive meeting, and “took note of the significant progress made since Korea submitted its request for partial adequacy and agreed that the two parties share very similar values with respect to human rights, with both sides recognising personal data protection as a fundamental right.” Furthermore, “they agreed to intensify their efforts to accelerate the pace of discussion.” The adequacy talks are very likely to be finalized in 2018, especially considering the fact that there are many similarities of South Korea’s “Personal Information Protection Act”  with the GDPR. However, concerning a final decision on the adequacy, another meeting in Brussels is planned later this year.

Currently the European Commission has recognised 12 countries for being able to ensure an adequate level of data protection, including Andorra, Argentina, Faroe Islands, Guernsey, Israel, Isle of Man, Jersey, New Zealand, Switzerland and Uruguay.

Facebook: EU Data may not have been shared with Cambridge Analytica

27. June 2018

As Bloomberg reports, Facebook said that evidence suggests that EU data may not be shared with Cambridge Analytica at all. Stephen Satterfield, a director on Facebook’s Privacy and Public Policy team told European Union lawmakers in a hearing: “The best information we have suggests that no European user data was shared by Dr. [Aleksandr] Kogan with Cambridge Analytica”. Aleksandr Kogan was the researcher who developed the app that allowed Cambridge Analytica to receive data from millions of Facebook users, which were later sold to the consulting firm working on the Donald Trump U.S. presidential campaign.

Facebook clarifies that they cannot be 100 per cent certain about this matter and that they will have to await the results of their own internal investigations, following the conclusion of the investigations of the U.K. Information Commissioner’s Office (ICO) that are being undertaken at the moment. In March this year, the offices of Cambridge Analytica were investigated by the ICO amid the allegations information of Facebook’s user data was obtained without the data subject’s consents.

Richard Allen, Facebook’s vice president of policy solutions, explaining the evidences that led Facebook to the conclusion that European data may not be shared with Cambridge Analytica, said that Kogan’s contract with Cambridge Analytica instructed Kogan to collect data from Americans to be used in the political campaigns. Allan further said, that Kogan may still have collected European data, while most of the people who installed the app were Americans.

“But the data he delivered to Cambridge Analytica were the Americans’ data because that’s all they wanted,” Allan stated.

However, Facebook previously had announced that about 2.7 million Europeans may have had their data shared with Cambridge Analytica. Ursula Pachl, deputy director-general of European consumer group BEUC said: “I have to say I was a bit surprised by the statements,” by further adding, “this is a contradiction, I don’t know how it can be explained.”

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.

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.

Spanish Football League app uses microphones and GPS to detect illegal broadcasting

11. June 2018

The official smartphone app of the Spanish football league (La Liga) can activate the microphone to search for unlicensed public broadcasts of league matches. Those responsible have admitted that the app activates the microphone during the league games in order to find out whether a public broadcast is taking place approximately to the smartphone. In addition, the app uses GPS to determine the exact location where the audio clip was recorded. If an unlicensed, public transmission is determined, the operators of the app receive a notification and can take action against those establishments.

Similar to other countries, Spanish establishments can only show pay-tv broadcasts of football matches in their restaurants with a special license. According to the league, unlicensed performances result in losses amounting to 150 million euros per year and the data obtained will only be used to fight piracy. With the help of the app the fans are to be acquired as “informers” in order to get to the scammers. The app is quite popular and was downloaded at least 10 million times.

The practice was revealed because of the General Data Protection Regulation (GDPR) which entered into force on May 25th 2018. The fact that the microphone authorisation is used for this purpose had not been explained in the terms of use. It merely said that the microphone was used for analysis of the audience. Due to the GDPR, in the newly data protection declaration it says that the app tries to find out via microphone whether the user is watching football and is searching for fraud. However, users in Spain have the possibility to revoke the permission to access the microphone at any time (iOS and Android), but must do so in the settings of their smartphone.

European Court of Justice (ECJ): Facebook fanpages will be treated as a case of Joint Control

With its judgment of June 5 2018, the ECJ decided that both the initiator of the fan pages (e.g. a company) and Facebook are jointly responsible in terms of the General Data Protection Regulation (GDPR) for the personal data collected within the scope of Facebook fan pages.

Fanpages are a Facebook profile of a company that can be used to easily communicate with customers.

Until now, information has been collected from customers who have contacted a company via Facebook. Depending on the type of use of the fan pages, the name and profile of the customer were stored. Facebook has also passed on information collected from users via tracking tools to the respective initiators of the fan pages. In the opinion of the ECJ, the affected users of the respective fan pages were not sufficiently informed about this fact, so that the following requirements must be observed in future:

Who visits a fan page must be informed about which data is collected for which purposes.

In consultation with Facebook, fan page operators must have their own knowledge of what data are collected in order to be able to inform them. This information is obligated pursuant to Art. 13 and 14 of the GDPR.

Before tracking tools and cookies are used, consent must be obtained.

Furthermore, companies and Facebook must become aware of their shared responsibility. It is not yet clear whether this will be done with a contract pursuant to Art. 26 GDPR on Joint Control or with an order data processing agreement pursuant to Art. 28 GDPR. Another solution may also be found.

However, this judgement will not only have consequences for Facebook, but will also affect all social media platforms. This not only affects companies that have their own company presence on Facebook, but also platforms such as LinkedIn, Twitter, Google+ etc., provided that similar tracking functions or other data surveys offer or are included.

Category: General

Data protection risks with regard to WhatsApp and Snapchat on business phones

6. June 2018

The use of the chat services WhatsApp and Snapchat on smartphones used for business purposes will in future be forbidden for employees of the automotive supplier Continental: For data protection reasons, the employer prohibits its employees from downloading the apps. This ban affects approximately 36,000 mobile phones worldwide.

The ban is based on the fact that social media services access users’ address books and thus personal (and possibly confidential) data. The messenger apps do not restrict access to personal data in their settings, so Continental consequently decided to ban the apps from service mobile phones to protect business partners and its own employees.

Under the current terms of use, users of WhatsApp agree to provide contact information “in accordance with applicable laws”. WhatsApp hereby shifts its data protection responsibility to its users, who in fact confirm that they have obtained a corresponding declaration of consent for data processing from every person in their address book. The social media service will be aware that this is practically impossible to guarantee.

In order to ensure an adequate level of data protection, the latter would therefore be obliged to design the default settings to conform to data protection requirements. Such a change could also have a positive effect on the company itself, considering that this would remove the breeding ground for the prohibition. WhatsApp could then be used on countless other smartphones.

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