Category: UK

Brexit: Deal or “No-deal”

12. March 2019

Yesterday evening, shortly before the vote of the UK parliament on the circumstances and if necessary a postponement of the Brexit, Theresa May met again with Jean-Claude Juncker in Strasbourg. Both sides could agree on “clarifications and legal guarantees” regarding the fall-back solution for Northern Ireland.

These (slightly) expand the United Kingdom’s (UK) opportunity to appeal to an arbitration court in the event that the EU should “hold the UK hostage” in terms of the membership of the customs union by means of the Backstop-Clause beyond 2020. This “legally binding instrument”, as Juncker said, intends to clarify that the Backstop-Clause on the Irish border is not to be regarded as a permanent solution. This shall also be confirmed in a joint political declaration on the future relations between the two sides. However, the wording of the complementary regulation is legally vague.

May is nevertheless confident that the British Parliament will approve the “new” agreement to be voted on tonight. Meanwhile Jeremy Corbyn, Labour Party leader, has announced and urged to vote against the agreement. In any case, Juncker has already rejected further negotiations on adjustments to the current version of the withdrawal agreement, emphasizing that there will be no “third chance”. By 23rd May, when the EU elections begin, the Kingdom shall have left the EU.

The vote on “how” and “when” of the Brexit will be taken in the next few days, starting tonight at 8 p.m. CET. If the withdrawal agreement will be rejected again today, the parliament will vote on a no-deal Brexit tomorrow (the UK would then be a third country in the sense of the GDPR as of 30th March). In case this will also be rejected, on 14th March the parliament will eventually vote on a delay of the Brexit date. A postponement could then lead to a new referendum and thus to a renewed decision on the question of “whether” a Brexit will actually take place.

Category: EU · GDPR · General · UK
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EDPB publishes information note on data transfer in the event of a no-deal Brexit

25. February 2019

The European Data Protection Board has published an information note to explain data transfer to organisations and facilitate preparation in the event that no agreement is reached between the EEA and the UK. In case of a no-deal Brexit, the UK becomes a third country for which – as things stand at present – no adequacy decision exists.

EDPB recommends that organisations transferring data to the UK carry out the following five preparation steps:

• Identify what processing activities will imply a personal data transfer to the UK
• Determine the appropriate data transfer instrument for your situation
• Implement the chosen data transfer instrument to be ready for 30 March 2019
• Indicate in your internal documentation that transfers will be made to the UK
• Update your privacy notice accordingly to inform individuals

In addition, EDPB explains which instruments can be used to transfer data to the UK:
– Standard or ad hoc Data Protection Clauses approved by the European Commission can be used.
– Binding Corporate Rules for data processing can be defined.
– A code of conduct or certification mechanism can be established.

Derogations are possible in the cases mentioned by article 49 GDPR. However, they are interpreted very restrictively and mainly relate to processing activities that are occasional and non-repetitive. Further explanations on available derogations and how to apply them can be found in the EDPB Guidelines on Article 49 of GDPR.

The French data protection authority CNIL has published an FAQ based on the information note of the EDPB, explaining the consequences of a no-deal Brexit for the data transfer to the UK and which preparations should be made.

The European Data Protection Board presents Work Program for 2019/2020

14. February 2019

On February 12, 2019 the European Data Protection Board (EDPB) released on their website a document containing a two-year Work Program.

The EDPB acts as an independent European body and is established by the General Data Protection Regulation (GDPR). The board is formed of representatives of the national EU and EEA EFTA data protection supervisory authorities, and the European Data Protection Supervisor (EDPS).

The tasks of the EDPB are to issue guidelines on the interpretation of key ideas of the GDPR as well as the ruling by binding decisions on disputes regarding cross-border processing activities. Its objective is to ensure a consistent application of EU rules to avoid the same case potentially being dealt with differently across various jurisdictions. It promotes cooperation between EEA EFTA and the EU data protection supervisory authorities.

The EDPB work program is based on the needs identified by the members as priority for individuals, stakeholders, as well as the EU legislator- planned activities. It contains Guidelines, Consistency opinions, other types of activities, recurrent activities and possible topics.

Furthermore, the EDPB released an information note about data transfers if a no-deal Brexit occurs. As discussed earlier, in this case the UK will become a so-called “third country” for EU member countries beginning from March 30. According to the UK Government, the transfer of data from the UK to the EEA will remain unaffected, permitting personal data to flow freely in the future.

Brexit: Impact on data protection after “May’s deal” has been rejected

18. January 2019

Prime Minister Theresa May’s draft withdrawal agreement to regulate Brexit was rejected by a clear majority of parliamentarians on 15th January. The draft withdrawal agreement has been agreed in November 2018 by the United Kingdom (UK) and the European Union (EU) – we reported: Brexit: Draft withdrawal agreement – GDPR remains applicable for foreseeable future – containing a transition period of 21-months in order to facilitate business sectors in their planning. Because of the recent rejection of the withdrawal agreement by the British Parliament, the scenario of the UK disorderly leaving the EU has now become quite likely. Among various economic and EU law issues, Brexit has also a concrete impact on data protection.

In case of a Brexit without corresponding transitional rules, the UK would be regarded as a third country under the General Data Protection Regulation of the EU (GDPR) as of 29th March 2019. This was also confirmed by Prof. Dr. Dieter Kugelmann, the State Data Protection Officer of Rheinland-Pfalz: “The fact is that the United Kingdom will become a “third country” within the meaning of the GDPR after leaving the EU.” Thus, an adaquacy decision would be required to transfer personal data of EU citizens or from the EU to the UK in the absence of any other mechanisms ensuring an adequate level of data protection according to Art. 44 ff. GDPR.

Since many companies currently transfer customer or employee data to the UK as well as a lot of data centres of service providers are located there, the Brexit will cause a need for adaption in terms of data protection matters. After the Brexit these Companies must ensure that there is an adequate legal basis for the relevant data transfers to the UK. Furthermore, according to Art. 13, 14 GDPR, the data subjects must be informed regarding the transfer of personal data outside the EU/EEA. All privacy policies on websites, privacy notices to employees etc. therefore would have to be adjusted. In the event of a data subject’s request for information, Art. 15 GDPR stipulates that the data subject must be informed about the transfer of his/her personal data to a third country. When personal data are transferred to the UK deemed as a third country, companies would eventually have to adjust their records of processing activities pursuant to Art. 30 GDPR.

It is recommended that in particular those companies transferring a lot of personal data to the UK at least are aware of these potentially required adaptations in order to further ensure compliance with EU data protection laws. As the GDPR, principally does not privilege any group of companies, the aforementioned recommendation also apply to data flows within such groups.

Uber to pay another fine for 2016 data breach

27. December 2018

Uber’s major data breach of 2016 still has consequences as it has also been addressed by the French Data Protection Authority “CNIL”.

As reported in November 2017 and September 2018, the company had tried to hide that personal data of 50 million Uber customers had been stolen and chose to pay the hackers instead of disclosing the incident to the public.

1,4 million French customers were affected as well which is why the CNIL has now fined Uber 400K Euros (next to the settlement with the US authorities amounting to $148 Million).

The CNIL came to find out that the breach could have been avoided by implementing certain basic security measures such as stronger authentication.

Great Britain and the Netherlands have also already imposed a fine totalling €1 million.

Electronic receipts sent by leading retailers may not comply with data protection rules

12. December 2018

After investigating several large retailers the consumer body Which? claims that many retailers in the UK include in their e-receipt marketing messages.

A lot of retailers offer the possibility to send digital receipts instead of paper receipts to the shoppers. However, it should be noted that when the General Data Protection Regulation (GDPR) came into force on May 25th earlier this year, the regulations concerning this area were tightened.

Retailers are not allowed to send direct marketing to new customers by email unless the recipient has consented to receive it. Shoppers must be given the opportunity to opt out in case the retailer asks for their email address at the point of sale with the intention to afterwards send marketing information.

According to Which? the following companies were visited at least three times by “mystery shoppers” to test if they send out unwanted marketing information in their e-receipts: Topshop, Dorothy Perkins, Nike, Clarks, New Look, Arcadia Group (Miss Selfridge, Outfit, Burton), Gap, Mothercare, Halfords, Currys PC World and Schuh. The “mystery shoppers” requested an electronic receipt without receiving any additional marketing.

The retailers dealt with this situation differently. One shop apparently sent a marketing email with the e-receipt as an attachment, while others included prompts to sign up for a newsletter or invitations to complete a survey in return for money off a future purchase. The concern is that consumers might be “bombarded” with unwanted marketing messages.

ICO fines companies for not paying the data protection fee

4. December 2018

The UK’s Information Commissioner’s Office (ICO) fines the first companies for not paying the data protection fee. Unless they are exempt, all organisations, companies and sole traders who process personal data have to pay an annual data protection fee.

Depending on their maximum turnover, number of employees and whether they are a charity or public authority, the fee varies from £40 to £2,900. Whereas the fine for not paying varies from £400 to £4,000. The fines recovered go to the Treasury’s Consolidated Fund. The regulations came into force together with the new Data Protection Act on 25 May 2018.

“Following numerous attempts to collect the fees via our robust collection process, we are now left with no option but to issue fines to these organisations. They must now pay these fines within 28 days or risk further legal action. (…) You are breaking the law if you process personal data or are responsible for processing it and do not pay the data protection fee to the ICO”, said Paul Arnold, Deputy Chief Executive Officer at the ICO.

More than 900 fine notices have been issued by the ICO since September and more are set to follow. Companies can check if their fee is due to renewal on the ICO’s website.

Category: General · UK
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LinkedIn processed 18 million non-user email addresses to target Facebook advertisings

28. November 2018

The business and employment-oriented service LinkedIn processed the email addresses of 18 million non-members and targeted them with advertising on Facebook without permission.

A non-LinkedIn user issued a complaint to the Data Protection Commission that their email address had been obtained and used by the organisation for the purposes of targeted advertising on Facebook. Within Ireland’s Data Protection Commission the concerns grew regarding LinkedIn’s processing of personal data of non-users. Therefore, the office conducted an audit of the multinational LinkedIn Ireland, home to the company’s EU headquarters, and stated that it used million of e-mail addresses of non-users.

Also involved is LinkedIn Corp in the US, which processes data on behalf of LinkedIn Ireland. They targeted – by means of 18 million addresses – the individuals in Facebook. According to the commissioner’s annual report LinkedIn in the US carried out the processing in the absence of instructions from LinkedIn in Ireland (the controller). Said annual report covers the period from January 1st to May 24th 2018. Then the old office of the Data Protection Commissioner ceased to exist due to the General Data Protection Regulation. The new Data Protection Commission came into existence on May 25th 2018.

Brexit: Draft withdrawal agreement – GDPR remains applicable for foreseeable future

23. November 2018

Last week the U.K. and EU could conclude a draft withdrawal agreement for the United Kingdom to leave the European Union as of 30th March 2019. The agreement covers the “divorce” of both of them and a non-binding political statement concerning their ideas for the future relations. The declaration is referring to a commitment regarding an ambitious free trade agreement, containing areas including financial services, continued free flow of data, and other subjects relating to the EU such as defense matters have been picked up.

After the U.K. will have left the EU in March 2019 a 21-month transition period is planned in order to facilitating business sectors in their planning. Thus, at least until the beginning of 2021, EU regulations would remain effective keeping the U.K. in the single market and Customs Union. However, this time frame could also be extended by common agreement.

With regard to data protection, the withdrawal agreement directly addresses data protection and security issues in Articles 70 to 74. These provisions stipulate that EU data protection rules, including the GDPR, shall apply in the U.K. when using personal data of data subjects outside the United Kingdom exchanged before the end of the transition period. Furthermore, after the end of the transition period, the U.K. is obliged to further apply these EU rules to the processing of “EU personal data”, until the U.K. data protection laws to be enacted ensure an adequate level of data protection which is “essentially equivalent” to that of the EU.  In the process of becoming subject to this formal adequacy decision to be established by the EU Commission the U.K.’s applicable data protection regime has to be assessed in the first place. In the event of annulling or repealing the adequacy decision, the provisions of the withdrawal agreement would be relevant for the EU personal data transferred to the U.K. to ensure the same “essentially equivalent” standard of data protection directly.

In other words, under the concluded agreement, the GDPR as well as the corresponding Data Protection Act would remain the applicable data protection law in the U.K. for the foreseeable future.

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).

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