Category: Article 29 WP

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

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.

The European Data Protection Board – A new authority under the EU General Data Protection Regulation (GDPR)

27. February 2018

Through the new General Data Protection Regulation (GDPR) there will be established a new EU Data Protection Authority, the so-called European Data Protection Board (the “Board”). The Board replaces the Article 29 Working Party starting May 25th 2018, when the GDPR enters into force. The board has its own legal personality.

Pursuant to Art. 68 (3) GDPR the Board is composed of the head of one supervisory authority of each Member State and of the European Data Protection Supervisor. It works independent and on its own initiative by issuing its opinion pursuant to Art. 64 GDPR or adopting a binding decision pursuant to Art. 65 GDPR, especially in the written cases of Art. 65 (1) GDPR. The Board hence has the authority to adopt one of the most powerful legal acts of the union from Art. 288 of the Treaty of the European Union (TFEU).

While harmonizing the data protection in the EU, the Boards main task is to maintain the consistent application of the GDPR by the national supervisory authority through the Consistency mechanism pursuant to Art. 63 GDPR. Within this Consistency mechanism, the Board comments the so-called Binding Corporate Rules (BCR), which are necessarily given by national data protection authorities for international data transfer of a company group.

The Board also has the final say if the national data protection authorities cannot reach an agreement concerning the implementation of the GDPR.

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)

French Data Protection Commission threatens WhatsApp with sanctions

21. December 2017

The French National Data Protection Commission (CNIL) has found violations of the French Data Protection Act in the course of an investigation conducted in order to verify compliance of WhatsApps data Transfer to Facebook with legal requirements.

In 2016, WhatsApp had announced to transfer data to Facebook for the purpose of targeted advertising, security and business intelligence (technology-driven process for analyzing data and presenting actionable information to help executives, managers and other corporate end users make informed business decisions).

Immediately after the announcement, the Working Party 29 (an independent European advisory body on data protection and privacy, set up under Article 29 of Directive 95/46/EC; hereinafter referred to as „WP29“) asked the company to stop the data transfer for targeted advertising as French law doesn’t provide an adequate legal basis.

„While the security purpose seems to be essential to the efficient functioning of the application, it is not the case for the “business intelligence” purpose which aims at improving performances and optimizing the use of the application through the analysis of its users’ behavior.“

In the wake of the request, WhatsApp had assured the CNIL that it does not process the data of French users for such purposes.

However, the CNIL currently not only came to the result that the users’ consent was not validly collected as it lacked two essential aspects of data protection law: specific function and free choice. But it also denies a legitimate interest when it comes to preserving fundamental rights of users based on the fact that the application cannot be used if the data subjects refuse to allow the processing.

WhatsApp has been asked to provide a sample of the French users’ data transferred to Facebook, but refused to do so because being located in die United States, „it considers that it is only subject to the legislation of this country.“

The inspecting CNIL thus has issued a formal notice to WhatsApp and again requested to comply with the requirements within one month and states:

„Should WhatsApp fail to comply with the formal notice within the specified timescale, the Chair may appoint an internal investigator, who may draw up a report proposing that the CNIL’s restricted committee responsible for examining breaches of the Data Protection Act issue a sanction against the company.“

 

WP29 releases opinion on joint review of Privacy Shield

11. December 2017

The Working Party 29 (WP29),  an independent European advisory body on data protection and privacy, has evaluated the Privacy Shield agreement  (framework for transatlantic exchanges of personal data for commercial purposes between the European Union and the United States, see also our report on One year of Privacy Shield).

In its joint review, the WP29 focusses on the assessment of commercial aspects and governmental access to personal data for national security purposes.

Though acknowledging progress, the WP29 still finds unresolved issues on both sides.

It criticizes the lack of guidance and clear information on the principles of the Privacy Shield, especially with regards to onward transfers, the rights of the data subject and remedies.

The US authorities are further requested to clearly distinguish the status of data processors from that of data controllers.

Another important issue to be tackled is the handling of Human Resource (HR)  data and the rules governing automated-decision making and profiling.

Also, the process of self-certification for companies requires improvement.

In terms of access by public authorities, the WP 29 concludes that the US government has made effort to become more transparent.

However, some of the main concerns still are to be resolved by May 25th, 2018.

The WP 29 calls for further evidence or legally binding commitments to confirm non-discrimination and the fact that authorities don’t get access on a generalized basis to data transferred to the USA from the EU.

Aside from these matters, an Ombudsperson still needs to be appointed and her/his exact powers need to be specified. According to the WP 29, the existing powers to remedy non-compliance are not sufficient.

In case no remedy is brought to these concerns in the given time frames, the members of WP29 will take appropriate action, including bringing the Privacy Shield Adequacy decision to national courts for them to make a reference to the Court of Justice of the European Union (CJEU) for a preliminary ruling.

Article 29 WP releases opinion on data processing at work

11. July 2017

The Article 29 Working Party (WP) has released their opinion on data processing at work on the 8th of June 2017. The Opinion is meant as an amendment to the previous released documents on the surveillance of electronic communications (WP 55) and processing personal data in employment context (WP 48). This update should face the fast-changing technologies, the new forms of processing and the fading boundaries between home and work. It not only covers the Data Protection Directive but also the new rules in the General Data Protection Regulation that goes into effect on 25th of May 2018.

Therefore they listed nine different scenarios in the employment context where data processing can lead to a lack in data protection. These scenarios are data processing in the recruitment process and in-employment screening (especially by using social media platforms), using monitoring tools for information and communication technologies (ICT), usage at home/remote, using monitoring for time and attendance, use of video monitoring, use of vehicles by employees, the disclosure of data to third parties and the international transfer of employee data.

The Article 29 WP also pointed out the main risk for the fundamental rights of the employees. New technologies allow the employer tracking over a long time and nearly everywhere in a less visible way. This can result into chilling effects on the rights of employees because they think of a constant supervision.

As a highlight the Article 29 WP gives the following recommendations for dealing with data processing in the employment context:

  • only collect the data legitimate for the purpose and only with processing taking place under appropriate conditions,
  • consent is highly unlike to be a legal base for data processing, because of the imbalance in power between the employer and the employee,
  • track the location of employees only where it is strictly necessary,
  • communicate every monitoring to your employees effectively,
  • do a proportionality check prior the deployment of any monitoring tool,
  • be more concerned with prevention than with detection,
  • keep in mind data minimization; only process the data you really need to,
  • create privacy spaces for users,
  • on cloud uses: Ensure an adequate level of protection on every international transfer of employee data.

Existing concerns on Windows data protection laws infractions

22. February 2017

There still exists a European data protection authorities´ concern on the data collection practices in Windows 10. Even though the letter to Microsoft has been sent by the Article 29 Working Party (or WP29), the UK Information Commissioner’s Office (ICO) has expressed its serious worries.

Microsoft was therefore asked to explain in a very clear way the purposes and kinds of personal data, which are under processing, as this is still an issue, which remains unclear.

Last July even France`s CNIL has demanded Microsoft to “halt the excessive collection of data and the tracking of users’ browsing without their consent”, as it accused Microsoft of numerous data protection laws infractions, such as too wide personal data collection under the telemetry programme and tracking tool default activation (intended to the targeted advertising delivery) without consent or user knowledge.

As a response Microsoft has released to the market (in January) a new Windows 10 update – so called “Creators Update”. It includes a dashboard based on web, which allows users to choose the desired data-sharing level.

At the conference in Australia, which took place this Monday, Microsoft has also announced a second major Windows 10 release this year (with the Neon user-interface design elements project).

According to the WP29 though: “Even considering the proposed changes to Windows 10, the Working Party remains concerned about the level of protection of users’ personal data”.

“Microsoft should clearly explain what kinds of personal data are processed for what purposes. Without such information, consent cannot be informed, and therefore, not valid.”

Apart from Windows, the WP29 has also taken Facebook, WhatsApp and Yahoo under its magnifier, which are being suspected of data-protection laws violations.

Category: Article 29 WP · EU · Personal Data · UK
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WhatsApp required to appoint a representative in The Netherlands

16. December 2016

Background

On the 22nd November, the Administrative Court of the Hague confirmed the fine imposed by the Dutch DPA to WhatsApp. In 2012, the Dutch DPA investigated WhatsApp because it had not yet appointed a representative in the Netherlands, according to current Dutch Data Protection legislation. As WhatsApp had still not complied with its obligation to appoint a representative in the EU in 2014, it imposed a fine of 10.000€ for each day of non-compliance.

The Dutch DPA remarked that WhatsApp had the obligation to appoint a representative in The Netherlands because it acted as Data Controller, as it was processing personal data of Dutch citizens. When a user searched for a contact in order to send a WhatsApp message to this contact, WhatsApp accessed this information and stored it in its U.S. servers. Therefore, WhatsApp had to be considered as a data controller in terms of the EU Directive on Data Protection and the Dutch Data Protection Act.

Current situation according to the EU Directive

The Dutch Administrative Court based its argumentation on the following key aspects:

  • WhatsApp is a controller, as already admitted by the company at oral argument.
  • The equipment used by Dutch data subjects, this is the mobile device, is located in Dutch territory. Moreover, according to previous positions of the WP 29 and other EU Courts, mobile devices are also considered as equipment in terms of data processing.
  • WhatsApp argued that Dutch Data Protection Act imposes additional requirements than those imposed by the EU Directive, so that a representative appointed by a data controller has also to comply with the Dutch Data Protection Act. However, the Dutch Court clarified that the extension of the responsibility of the Data Controller to the representative aims at filling legal gaps regarding the application of the data protection principles. The Court also specified that an agreement between the data controller and the representative may be needed in these cases, in order to agree on liability issues.
  • WhatsApp also argued that it should have been requested to appoint just one representative in the EU, as foreseen in the GDPR. The Dutch Administrative Court pointed out that WhatsApp had no representative in any other EU Member State.
  • Finally, WhatsApp alleged that it could not find a party willing to asume this role, but the Court rejected this argument as it has no legal basis.

Will this change with the GDPR?

With the GDPR the requirement to appoint a representative in the EU will change in two ways:

  • Also processors will be subject to this obligation
  • it will be possible to appoint one single representative for all the EU operations.

Under the GDPR it will be mandatory to appoint a representative for those controllers or processors who are based in a third country and they offer goods or services to data subjects in the EU or if behavior monitoring of these data subjects takes place in the EU.

Moreover, the GDPR distinguishes between the representative and the role of the DPO. The requirements to appoint each of them are different but it may occur that a company is obliged to appoint both, only a representative, or a DPO.

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.

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