Category: EU Commission

Transatlantic Data Transfers in light of the Two Year Anniversary of GDPR Application

7. July 2020

In the last two years since the General Data Protection Regulation (GDPR) came into effect on May 25, 2018, it has received an overall positive feedback and structured the data protection culture not only in the European Union, but has set an example for international privacy standards.

However, especially from the American side of the world, criticism has been constant. Different principles are a prerequisite for different opinions and priorities, and the effort to bring European data protection standards and American personal data business together has been a challenge on both sides.

One of the main criticisms coming from the US government is the increasing obstacles the GDPR poses in case of cybercrime investigations and law enforcement. Not only the restrictive implications of the GDPR are an issue, but also the divergent interpretations due to national adaptations of the GDPR are seen as a problem by government officials.

In the cases of cybercrime, the main issue for the US critics is the now less effective database of domain name owners, WHOIS. The online directory, which was created in the 1970s, is an important tool for law enforcement combatting cybercrime. Before the GDPR came into effect in 2018, the request for information on domain owners was straightforward. Now, due to the restrictions of the GDPR, this process has been made long and tedious.

But fighting cybercrime is not the only tension between the EU and the USA concerning data protection. In a judgement in the Schrems II case, expected for July 16, 2020, the European Court of Justice (ECJ) is expected to take a stance on transatlantic data transfers and the current Privacy Shield, which is the basis for the EU-US dataflows under adequate data protection standards. If the Privacy Shield is deemed insufficient protection, it will have a major effect on EU-US business transactions.

However, these are issues that the European Commission (EC) is very aware of. In their communication concerning the two-year review of the GDPR, the Commission stated that they are planning to balance out diverging and fragmented interpretations of the GDPR on national levels and find a common data protection culture within Europe.

In addition, the restrictions the GDPR poses to law enforcement are another point the European Commission knows it needs to fix. The plan for the future is a bilateral and multilateral framework that can allow for simple requests to share data for law enforcement purposes and avoid conflicts of law, while keeping data protection safeguards intact.

The upcoming judgement of the ECJ is seen with watchful eyes by the Commission, and will be incorporated in their upcoming adequacy decisions and re-evaluations, as well as their development of a modern international transfer toolbox, which includes a modernized version of the standard contractual clauses.

Overall, the two-year mark of the existence of the GDPR is seen more as a success, despite the clear areas for future improvement. One of the big challenges in transatlantic data transfers ahead is without a doubt the outcome of the judgement in the Schrems case in mid-July, the implications of which are, at this point in time, not yet able to be defined.

Hungary Update: EDPB publishes Statement on Art. 23 GDPR

17. June 2020

Since March 2020, Hungary has been in a “state of emergency” following the COVID-19 pandemic. The country’s COVID-19 related emergency laws and state of emergency received worldwide criticism from constitutional experts, politicians and civil rights groups, because it allows the Prime Minister to rule by decree during the state of emergency and does not provide a predefined end date. During the state of emergency, Prime Minister Victor Orbán made extensive use of his newly gained powers by passing more than a hundred decrees, including Decree No. 179/2020, which suspended the GDPR data subject rights in Art. 15-22 GDPR with respect to personal data processing for the purpose of preventing, understanding, detecting the coronavirus disease and impeding its further spread (we reported).

In response to this suspension of GDPR rights, the European Data Protection Board (“EDPB”) has recently published a Statement on restrictions on data subject rights pursuant to Art. 23 GDPR, which is the provision that Hungary’s measure was based on. This article allows the member states to restrict, by way of a legislative measure, the scope of the obligations and rights provided for in Articles 12 to 22 and Article 34, when such a restriction respects the essence of the fundamental rights and freedoms and is a necessary and proportionate measure in a democratic society to safeguard, inter alia, important objectives of general public interest of the Union or of a Member State such as public health.

In its Statement, the EDPB points out that any restriction must respect the essence of the right that is being restricted. If the essence of the right is compromised, the restriction must be considered unlawful. Since the data subject’s right of access and the right to rectification are fundamental rights according to Art. 8 para. 2 of the Charter of Fundamental Rights of the European Union, any restriction of those rights must be carefully weighed up by the member states, in order respect the essence of the rights. The EDPB considers that restrictions adopted in the context of a state of emergency suspending or postponing the application of data subject rights, without any clear limitation in time, equate to a de facto blanket suspension and denial of those rights and are not be compatible with the essence of the fundamental rights and freedoms.

The EDPB also recalls that the restrictions under Art. 23 GDPR must be necessary and proportionate. It argues that restrictions that are imposed for a duration not precisely limited in time or which apply retroactively or are subject to undefined conditions, are not foreseeable to data subjects and thus disproportionate.

Furthermore, the EDPB takes the view that in order to safeguard important objectives of general public interest such as public health (Art. 23 para. 1 lit. e GDPR), there must be a clearly established and demonstrated link between the foreseen restrictions and the objective pursued. The mere existence of a pandemic or any other emergency situation alone does not justify a restriction of data subject rights, especially if it is not clearly established, how the restrictions can help dealing with the emergency.

Following the international public backlash, the Parliament of Hungary passed legislation on 16 June 2020 to revoke the emergency laws as soons as the current state of emergency will be terminated by the Government. Hungary’s Government announced in May that it intends to lift the state of emergency on 20 June 2020. After that, the restrictions on the GDPR rights shall be lifted as well, so that data subject may exercise their Art. 15-22 GDPR rights again.

Hungarian Government suspends GDPR rights for COVID-19 related Data Processing

12. May 2020

In the face of the Corona pandemic, Hungary is currently in an indefinite “state of emergency”. Originally, Prime Minister Victor Orbán decreed the state of emergency on 11 March 2020 lasting for a period of 15 days. However, on 30 March 2020, the Hungarian Parliament passed emergency legislation (Bill on Protection against Coronavirus or Bill T/9790) extending the state of emergency until terminated by the Prime Minister and allowing the Prime Minister to rule by decree during the state of emergency. The Bill was passed thanks to the two-thirds majority of Orbán’s Fidesz Party in the Hungarian Parliament.

On 4 May 2020, Prime Minister Orbán issued Decree No. 179/2020 which contains several provisions affecting Data Protection in Hungary extensively for the time of the state of emergency.

Most importantly, the decree suspends the individual data subject’s rights pursuant to Art. 15 to 22 of the European GDPR when processing personal data for the purpose of preventing, recognising, and stopping the spread of the Coronavirus. It also stipulates that the one month time limit for Controllers to provide the necessary information (Art. 12 para. 3 GDPR) will only begin after the termination of the state of emergency for any Coronavirus related data subject requests. Furthermore, the data collection information requirements for Controllers pursuant to Art. 13 and 14 GDPR will be satisfied by publishing an electronic privacy notice providing the purpose and the legal basis of data processing which the data subjects may take notice of.

The emergency decree received much criticism from various European Data Protection authorities and civil rights groups. The head of the European Data Protection Board (“EDPB”) Andrea Jelinek stated that she is “personally very worried” about the developments, and described the Hungarian government’s decision as “unnecessary [and] detrimental”. In its most recent plenary session, the EDPB also specifically discussed Hungary’s emergency measures in light of European Data Protection Law.

European Commission releases third annual Privacy Shield Review report

25. October 2019

The European Commission has released a report on the E.U.-U.S. Privacy Shield, which represents the third annual report on the performance of the supranational Agreement, after it came into effect in July 2016. The discussions on the review were launched on 12 September 2019 by Commissioner for Justice, Consumers and Gender Equality Věra Jourová, with the U.S. Secretary of Commerce Wilbur Ross in Washington, DC.

The Privacy Shield protects the fundamental rights of anyone in the European Union whose personal data is transferred to certified companies in the United States for commercial purposes and brings legal clarity for businesses relying on transatlantic data transfer. The European Commission is commited to review the Agreement on an annual basis to ensure that the level of protection certified under the Privacy Shield continues to be at an adequate level.

This year’s report validates the continuous adequacy of the protection for personal data transferred to certified companies in the U.S. from the Europan Union under the Privacy Shield. Since the Framework was implemented, about 5000 companies have registered with the Privacy Shield. The EU Commissioner for Justice, Consumers and Gender Equality stated that “the Privacy Shield has become a success story. The annual review is an important health check for its functioning“.

The improvements compared to the last annual review in 2018 include the U.S. Department of Commerce’s efforts to ensure necessary oversight in a systematic manner. This is done by monthly checks with samply companies that are certified unter the Privacy Shield. Furthermore, an increasing number of European Citizens are making use of their rights under the Framework, and the resulting response mechanisms are functioning well.

The biggest criticism the European Commission has stated came in the form of the recommendation of firm steps to ensure a better process in the (re)certification process under the Privacy Shield. The time of the (re)certification process allows companies to get recertified within three months after their certification has run out, which can lead to a lack of transparency and confusion, since those companies will still be listed in the registry. A shorter time frame has been proposed by the European Commission to guarantee a higher level of security.

Overall, the third annual review has been seen as a success in the cooperation between the two sides, and both the U.S. and the European officials agree that there is a need for strong and credible enforcement of privacy rules to protect the respective citizens and ensure trust in the digital economy.

Greek Parliament passes bill to adopt GDPR into National Law

29. August 2019

On Monday, August 26th, the Greek Parliament passed a bill that will incorporate the European Union’s General Data Protection Regulation (GDPR) into national law. Originally, the adaptation of the EU regulation was supposed to take place until May 06, 2018. Greece failed to comply with the deadline.

The, now, fast-paced implementation of the regulation may have come as a result of the referral of Greece and Spain by the European Commission (EC) to the European Court of Justice on July 25th. Since they had failed to adopt the GDPR into national law up until then, Greece could have faced a fine of €5,287.50 for every day passed since May 06, in addition to a stiff fine of €1.3 million. In its statement, the EC declared that “the lack of transposition by Spain and Greece creates a different level of protection of peoples’ rights and freedoms, and hampers data exchanges between Greece and Spain on one side and other Member States, who transposed the Directive, on the other side”.

The EU countries are allowed to adopt certain derogations, exeptions and specifications under the GDPR. Greece has done so, in the approved bill, with adjusted provisions in regards to the age of consent, the process of appointing a Data Protection Officer, sensitive data processing, data repurposing, data deletion, certifications and criminal sanctions.

The legislation was approved by New Democracy, the main opposition SYRIZA, the center-left Movement for Change and leftist MeRA25, with an overwhelming majority. The GDPR has already been in effect since May 25th, 2018, with its main aim being to offer more control to individuals over their personal data that they provide to companies and services.

 

Category: EU · EU Commission · GDPR · General
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Hearing on the legal challenge of SCC and US-EU Privacy Shield before CJEU

17. July 2019

On Tuesday last week, the European Court of Justice (CJEU) held the hearing on case 311/18, commonly known as “Schrems II”, following a complaint to the Irish Data Protection Commission (DPC) by Maximilian Schrems about the transfer of his personal data from Facebook Ireland to Facebook in the U.S. The case deals with two consecutive questions. The initial question refers to whether U.S. law, the Foreign Intelligence Service Act (FISA), that consists a legal ground for national security agencies to access the personal data of citizens of the European Union (EU) violates EU data protection laws. If confirmed, this would raise the second question namely whether current legal data transfer mechanisms could be invalid (we already reported on the backgrounds).

If both, the US-EU Privacy Shield and the EU Standard Contractual Clauses (SCCs) as currently primeraly used transfer mechanisms, were ruled invalid, businesses would probably have to deal with a complex and diffucult scenario. As Gabriela Zanfir-Fortuna, senior counsel at Future of Privacy Forum said, the hearing would have had a particularly higher impact than the first Schrems/EU-US Safe Harbor case, because this time it could affect not only data transfers from the EU to the U.S., but from the EU to all countries around the world where international data transfers are based on the SCCs.

This is what also Facebook lawyer, Paul Gallagher, argued. He told the CJEU that if SCCs were hold invalid, “the effect on trade would be immense.” He added that not all U.S. companies would be covered by FISA – that would allow them to provide the law enforcement agencies with EU personal data. In particular, Facebook could not be hold responsible for unduly handing personal data over to national security agencies, as there was no evidence of that.

Eileen Barrington, lawyer of the US government assured, of course, by referring to a “hypothetical scenario” in which the US would tap data streams from a cable in the Atlantic, it was not about “undirected” mass surveillance. But about “targeted” collection of data – a lesson that would have been learned from the Snowden revelations according to which the US wanted to regain the trust of Europeans. Only suspicious material would be filtered out using particular selectors. She also had a message for the European feeling of security: “It has been proven that there is an essential benefit to the signal intelligence of the USA – for the security of American as well as EU citizens”.

The crucial factor for the outcome of the proceedings is likely to be how valid the CJEU considers the availability of legal remedies to EU data subjects. Throughout the hearing, there were serious doubts about this. The monitoring of non-US citizens data is essentially based on a presidential directive and an executive order, i.e. government orders and not on formal laws. However, EU citizens will be none the wiser, as particularly, referring to many critisists’ conlusion, they do not know whether they will be actually surveilled or not. It remains the issue regarding the independence of the ombudsperson which the US has committed itself to establish in the Privacy Shield Agreement. Of course, he or she may be independent in terms of the intelligence agencies, but most likely not of the government.

However, Henrik Saugmandsgaard Øe, the Advocate General responsible for the case, intends to present his proposal, which is not binding on the Judges, on December 12th. The court’s decision is then expected in early 2020. Referring to CJEU judge and judge-rapporteur in the case, Thomas von Danwitz, the digital services and networking would be considerably compromised, anyways, if the CJEU would declare the current content of the SCC ineffective.

 

 

The EU Commission fined Google 1.49 billion euros regarding antitrust case

21. March 2019

On Wednesday Google was fined 1.49 billion euros by the European Commission in connection with hindering competitors in the online advertising business.

The accusation is that Google has illegally made use of its market dominance.The company inflicted a number of exclusivity clauses in contracts with third-party websites which prevented the company’s competitors from positioning their search adverts on these websites. This concerns a small area in Google’s “advertising machinery”. But still, as a result, other advertisers and website owners “had less choice and likely faced higher prices that would be passed on to consumers,” claimed the EU’s competition commissioner, Margrethe Vestager.

In the last two years, this represents the third time that Europe’s antitrust regulators, lead by Danish competition commissioner Margarethe Vestagers, fined the tech company. Google has appealed against the two previous fines. The first fine (2.42 billions euros) was for manipulating online shopping results and directing visitors to its comparison-shopping service at the expense of its contestants. The second one amounting to 4.34 billion euros concerned mobilephone producers that were forced to use Google’s Android operating system to install the company’s search and browser apps.

Category: EU · EU Commission · European Union · General
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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.

GDPR in numbers

6. February 2019

The European Commission lately posted an infographics about the impact of the General Data Protection Regulation (GDPR) since its entering into force on May 25, 2018. The graphic looks at complying, enforcement and awareness of the GDPR. It illustrates inter alia that:

  • In total 95.180 complaints to Data Protection Authorities came from individuals who believe their rights under GDPR have been violated. Most of the complaints were related to CCTV, telemarketing or promotional e-mails.
  • Until January, the number of notifications of data breaches has increased up to 41.502. The data controllers have to notify data breaches within 72 hours to their national supervisory authority.
  • Data Protection Authorities have initiated 225 investigations in cross border cases.
  • In Europe, 23 countries have adopted their national data protection law since the GDPR came into force. Bulgaria, Greece, Slovenia, Portugal and Czech Republic are still in progress doing so.
  • So far, three fines have been issued under GDPR. In Germany, a social network operator was fined € 20.000 for not securing its users data. In France, Google was fined € 50 million for lack of transparency, inadequate information and lack of valid consent regarding the ads personalization (we reported) and in Austria, a sports betting café was fined € 5.280 for unlawful video surveillance.

Data Protection Day

28. January 2019

On the occassion of this year’s Data Protection Day, which was launched in 2006 by the Council of Europe, the Commission has issued the following statement :

“This year Data Protection Day comes eight months after the entry into application of the General Data Protection Regulation on 25 May 2018. We are proud to have the strongest and most modern data protection rules in the world, which are becoming a global standard.”

On January 28th in 2006, the Council of Europe’s data protection convention, known as “Convention 108”, was opened to signature. Data Protection Day is now celebrated globally and is called Privacy Day outside of Europe.

More than 50 countries around the world have already signed up to the convention, which sets out key principles in the area of personal data protection.

The convention has been ratified by the 47 Council of Europe member states and Mauritius, Senegal, Uruguay and Tunisia. Other countries such as Argentina, Burkina Faso, Cabo Verde, Mexico and Morocco have been invited to accede. Many more participate as Observers States in the work of the Committee of the Convention (Australia, Canada, Chile, Ghana, Indonesia, Israel, Japan, Korea, New-Zealand, United States of America).

Governments, parliaments, national data protection bodies and other actors carry out activities on this day to raise awareness about the rights to personal data protection and privacy. These may include campaigns targeting the general public, educational projects for teachers and students, open doors at data protection agencies and conferences.

 

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