Category: EU Commission

European Commission proposes new ePrivacy Regulation

10. February 2017

On January 10, the European Commission published a proposal for an ePrivacy Regulation. After the adoption of the General Data Protection Regulation (‘GDPR’), a new ePrivacy Regulation would be the next step in pursuing the European Commission’s Digital Single Market Strategy (‘DSM’).

If adopted, the ePrivacy Regulation will replace both the ePrivacy Directive (2002/58/EC) and the Cookie Directive (2009/136/EC). In contrast to a Directive that has to be implemented into national law by each EU Member State, a Regulation is directly applicable in all Member States. Thus a Regulation would support the harmonisation of the data protection framework.

What’s new?

Since 2009, when the ePrivacy Directive was revised last, important technological and economic developments took place. In order to adapt the legal framework to the reality of electronic communication, the scope of the proposed Regulation is widened to apply to the so called ‘over-the-top’ (‘OTT’) service providers. These OTT providers, such as WhatsApp, Skype or Facebook, run their services over the internet.

By ensuring the privacy of machine-to-machine communication, the Regulation also deals with the Internet of Things and thus seems not only to consider the current situation of electronic communication, but also to prepare for upcoming developments within the information technology sector.

Electronical communications data (metadata as well as content data) cannot be processed without complying with the requirements of the Regulation. Metadata can be processed, if necessary for mandatory quality of service requirements or for billing, calculating interconnection payments, detecting or stopping fraudulent, or abusive use of, or subscription to, electronic communication services.

Content data can be used for the sole purpose of the provision of a specific service to an end-user, if the end-user or end-users concerned have given their consent to the processing of his or her electronic communications content and the provision of that service cannot be fulfilled without the processing of such content or if all end-users concerned have given their consent to the processing of their electronic communications content for one or more specified purposes that cannot be fulfilled by processing information that is made anonymous, and the provider has consulted the supervisory authority.

Regarding the use of cookies, the end-users’ consent is still the basic requirement, except for first party non-privacy intrusive cookies. These cookies can now be used without the consent of the end-user. The proposed Regulation furthermore allows to use browser settings as consent.

In contrast to the draft of the Regulation leaked in December 2016, the official proposal does not contain the commitment to ‘Privacy by default’, which means that software has to be configured so that third parties cannot store information on or use information about a user’s device.

The Commission’s proposal of the Regulation just demands that software must offer the option to prevent third parties from storing information on or using information about a user’s device.

ePrivacy Regulation and GDPR

Both the ePrivacy Regulation and the GDPR are part of the above mentioned ‘DSM’. Several commonalities prove this fact. For instance, the fines in both Regulations will be the same. Furthermore, the EU Data Protection Authorities responsible for the enforcement of the GDPR will also be responsible for the ePrivacy Regulation.  This will contribute to the harmonisation of the data protection framework and increase trust in and the security of digital services.

What’s next?

After being considered and agreed by the European Parliament and the Council, the Regulation could be adopted by May 25th, 2018, when the GDPR will come into force. It is to see whether this schedule is practicable, considering how long the debate about the GDPR took.

European Commission releases proposal to complete data protection framework

13. January 2017

On January 10th 2017 the European Commission released a Proposal for a Regulation concerning the respect for private life and the protection of personal data in electronic communications.

The presented proposal pursues the implementation of the EU’s Digital Single Market strategy. The Digital Single Market strategy aims to increase trust in and the security of digital services. With the upcoming General Data Protection Regulation further legislative measures have to be implemented in order to build a coherent regulatory framework.

The proposed Regulation will repeal the Directive 2002/58/EC Regulation on Privacy and Electronic Communications, also known as the “E-Privacy Directive”, which insufficiently regards current technological developments. Especially so-called Over the Top communication services, such as the messenger services WhatsApp, Skype or Facebook Messenger, are not regulated by the E-Privacy Directive and lack sufficient privacy for its users. According to the proposed Regulation, the content of messages as well as metadata will have to remain confidential and / or anonymized unless the user consented otherwise.

In addition, the new rules set out a strategic approach relating to international data transfer. By engaging in so-called “adequacy decisions” the transfer of personal data will be simplified while a high level of privacy remains.

The proposed Regulation further contains rules to ensure that personal data, which is processed by EU institutions and bodies, is handled according to the measures of the General Data Protection Regulation.

Finally, since the nature of the Proposal is a regulation instead of a directive, it should have a stronger impact for both consumers and businesses.

Ideally the legislative process will be finalized by May 25th 2018, when the General Data Protection Regulation will enter into force.

The viability of the EU-U.S. Privacy Shield under Trump is questioned

8. December 2016

What happened?

As Bloomberg Law Privacy & Data Security just reported, officials of the European Union stated that they will watch carefully for any signs of U.S. President-elect Donald Trump turning around the EU-U.S. Privacy Shield agreement.

Vera Jourova, EU Justice Commissioner, can be quoted that the European Union would “closely monitor the respect of protection standards and the correct implementation” of the EU-U.S. Privacy Shield “under the new U.S. leadership”.

Why are the concerns raised?

The questions are asked is due to the fact that under the EU-U.S. Privacy Shield data transfers are based on respect for European privacy rights in case European personal data is transferred to the USA for commercial purposes. However, as Trump made comments that can be interpreted so that such privacy rights might be disregarded, during the U.S. presidential campaig, concerns are raised.

Adina-Ioana Valean, Member of the European Parliament, gave a speech at the European Data Protection and Privacy Conference in Brussels and explained that “a lot of things were said” during the U.S. presidential campaign. Therefore, she concluded that “we should sit and wait for the next move and then we can judge”.

 

 

EU-U.S. Privacy Shield is being challenged

28. October 2016

As the website of the European Court of Justice just released, is the EU-U.S. Privacy Shield being challenged by Digital Rights Ireland, an Irish privacy advocacy group.

The facts of this case (Digital Rights Ireland v Commission; Case T-670/16) are as follows:

  • Digital Rights Ireland has filed an action for annulment against the European Commission’s adequacy decision on the EU-U.S. Privacy Shield.
  • There has been no comment from Digital Rights Ireland yet.
  • No documents have been published with regard to the case so far.
  • However, as HuntonPrivacyBlog reported “(…) media sources quote a spokesperson for the European Commission acknowledging the case and stressing the European Commission’s conviction that the Privacy Shield meets all legal requirements.”

Not a single EU Member State has implemented the EU PNR so far

14. October 2016

The European Passenger Name Records Directive (EU PNR) was passed earlier this year.

Although the European Commission spent tens of millions Euros on 15 national PNR schemes, not a single member state has implemented the respective Directive. There were national PNR schemes in order to help lay the groundwork for an EU-wide level proposal.

A commission spokesman commented that member states have until May 2018 to integrate the directive into their national laws.

However, Dimitris Avramopoulos, the European Commissioner for migration said that “The commission will be putting pressure on member states to implement it as soon as possible: we cannot wait for two years”.

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Centre for Information Policy Leadership just held GDPR workshop

6. October 2016

Last month, the CIPL held its second workshop in Paris as part of its two-year GDPR implementation project.

During this workshop almost 120 business delegates as well as 12 data protection authorities, four European Member State governments both the European Commission and the European Data Protection Supervisor, a non-DPA regulator and several academics and on top of all of the named above the IAPP participated in order to develop best practices and to build a bridge between authorities and economy.

This time, the workshop mainly focused both on the role of the data protection officers and on the privacy impact assessment, also called PIA.

In this context it was also announced that the Article 29 Working Party is going to release its first guidelines concerning the GDPR either before the end of the year or at the beginning of 2017. These guidelines will include advise on data portability and the role of the DPO. Furthermore, the Article 29 Working Party will also release guidance on risk, PIAs and certifications later on.

Do Europeans care more about their data than Americans?

22. September 2016

Recode just published an interview with Margrethe Vestager, Europeans Commissioner for Competition, talking about her impression that Europeans care more about their data than Americans.

First, she elaborates that Europe has historically been more critical towards new technology practices such as data collection. In this context, Vestager said “I am an economist, so I know that there is no such thing as a free lunch” she went on “You pay with one currency or another — either cents, or you pay with your data, or you pay with the advertisements that you accept. And I think people are becoming more and more aware of the fact that their personal data do have a value.”

Vestager underlined her point of view that Europeans care more about their data than Americans by saying “What we see in Europe is that a huge proportion of citizens find that they are not in control” she added “They distrust the companies to protect their data, and I think that is very bad, because then there is a risk of withdrawing from all the benefits of our digital economy. And in order to build up trust I think it is very important that we enforce privacy rules, that we get privacy by design in new services, so that privacy is not just an add-on, that it is very basic.”

Therefore, according to Vestager the Europeans have a greater need to protect their data than Americans.

Request for European Commission to investigate “Pokemon Go”

25. August 2016

A Belgian Minister of European Parliament wants that the European Commission investigates the App “Pokemon Go” in order to determine whether the App is compliant with European data protection law and furthermore, to warn European citizens of the dangers caused by the App.

Therefore, the respective Minister of European Parliament, Marc Tarabella, commented that the App violates not only the General Data Protection Regulation but furthermore, that it might violate the Europeans E-Privacy Directive due to the fact that the App stores cookies and trackers on users’ smartphones. He added  “In their eyes, tracking personal data of people is clearly considered a game and a source of research or revenue” and concluded “In Europe, the protection of privacy remains a fundamental right. We have to react, warn and strongly condemn these massive scams.”

Draft of the E-Privacy Directive to be released in September

18. August 2016

The Guardian just reported that the European Commission is about to release an update of the draft of the E-Privacy Directive in September.

This draft will probably inlcude that Apps like Skype and WhatsApp be treated the same in terms of the privacy regulations as SMS text messages and both mobile and landline calls. According to Jan Philipp Albrecht, Green MEP, this is due to the fact that “It was obvious that there needs to be an adjustment to the reality of today” he went on that “We see telecoms providers being replaced and those companies who seek to replace them need to be treated in the same way.” Furthermore, he mentioned that a focus of the new law lies in upholding strong encryption.

However, there are critics raising concerns as the law might decrease economic innovation and that it is “well-nigh impossible” to fit older legislation in newer technology.

 

EU-U.S. Privacy Shield operational since August, 1st

2. August 2016

The EU Commission announced yesterday the full operability of the agreed EU-U.S. Privacy Shield as substitute of the former Safe Harbor Framework. The Department of Commerce will verify the privacy policies of the U.S. Companies that sign up the Privacy Shield in order to ensure that they comply with the standards agreed on the new framework.

Furthermore, the EU Commission has also published a citizen’s guide regarding how their rights will be ensured and how to address complaints if they consider that their rights have not been respected. Amongst others, EU citizens have the right to access the data an organization holds about them, to correct their data if this is inaccurate or incorrect, to have access to the different dispute resolution mechanisms, etc.

U.S. Secretary of Commerce Penny Pritzker also made a statement regarding the launch of the new framework: “After more than two years of discussions, it is time to implement the new EU-U.S. Privacy Shield Framework with our partners in Europe and companies on both continents. With the Privacy Shield in place, businesses will be able to protect privacy and truly seize the opportunities offered by the transatlantic digital economy. More than $260 billion in digital services trade is already conducted across the Atlantic Ocean annually, but there is significant potential for this figure to grow, resulting in a stronger economy and job creation. The Privacy Shield opens a new era in data privacy that will deliver concrete and practical results for our citizens and businesses.”

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