Category: EU Commission

EU Commission announces formal adoption of the EU-U.S. Privacy Shield

13. July 2016

The EU Commission announced yesterday the formal adoption of the EU-U.S. Privacy Shield. Both, the EU Commission Vice-President, Andrus Ansip, and the EU Commissioner Vera Jourová highlighted the positive impact of the Privacy Shield not only for businesses, but especially for EU citizens, whose right to data protection will be enforced and several mechanisms will implemented in order to safeguard their rights.

The main aspects of the final draft of the EU-U.S. Privacy Shield are:

  • U.S. companies handling EU personal data will be subject to stricter obligations. For instance, the American Department of Commerce will review regularly that the participating companies comply in practice with the commitments of the Privacy Shield. In case of incompliance, the company will face not only fines, but will be also removed from the list.
  • The U.S. has ensured that bulk collection of EU citizens’ data will be carried out only if certain conditions are met and it will be as targeted and focused as possible. Also, a redress mechanism will be available for EU citizens to solve this kind of issues.
  • Individual rights will be effectively protected through the implementation of dispute resolution mechanisms, which will be affordable and accessible for EU citizens. In case that the dispute is not resolved, an arbitration mechanism will be also available. If the dispute refers to U.S. national security Authorities, an independent Ombudsperson will handle the issue.
  • The Privacy Shield will be subject to an annual review by the EU Commission and the U.S. Department of Commerce in order to monitor its functioning.

Next steps

The Privacy Shield constitutes an “adequacy decision”. This decision has been notified to the EU Member States by the EU Commission and will enter into force immediately. Additionally, it will also be published on the U.S. Official Journal.

Starting August 1st, the U.S. Department of Commerce will start processing membership requests. This means that companies that wish to certify and become members of the EU-U.S. Privacy Shield will have to review and if appropriate update their privacy programs.

Furthermore, the EU Commission will publish a guidance in order to inform EU citizens about the dispute resolution mechanisms available under the Privacy Shield.

What happens with the GDPR?

The GDPR lays down stricter requirements to carry out international data transfers than those of the Privacy Shield. As the GDPR will enter into force in two years, U.S. companies will have to be compliant also with the requirements of the GDPR.

However, this situation has been already addressed in two directions: on the one hand, the Privacy Shield will be subject to an annual review, as mentioned above; and on the other hand, the Privacy Shield states that its scope of application refers to data transfers and processing of personal data by U.S. companies as far as the processing does not fall under the scope of EU legislation.

NIS Directive has been adopted by the EU Commission

12. July 2016

On the 6th July 2016, the Vice-President of the EU Commission, Andrus Ansip, and Commissioner Günther H. Oettinger announced the approval of the NIS Directive, this is the Directive on Security of Network and Information Systems.

NIS Directive is one of the main legislative proposals in the context of the Cybersecurity Strategy developed by the EU and focuses on the following aspects:

  • The development of a national system to face cybersecurity attacks such as a Computer Security Incident Response (CSIRT) and a competent authority in cybersecurity issues.
  • A strategic cooperation mechanism between Member States and a development of a CSIRT Network in order to share information about risks.
  • To promote a culture of IT-security in all industry sectors, especially those identified as being “operators of essential services”. This also means to adopt adequate incident response plans. The Directive will apply also to digital service providers such as cloud computing, search engines and e-commerce businesses.

The Directive will enter into force in August 2016 and EU Member States will have 21 months to implement it into their national laws.

EU-U.S. Privacy Shield: approval expected within this week

4. July 2016

The EU Commission and American negotiators reached last week an agreement regarding the final draft of the EU-U.S. Privacy Shield. Now, the EU Commission has sent this draft to the Article 31 WP, who is expected to issue an opinion by tomorrow. If so, the EU-U.S. Privacy Shield will be implemented by the end of this week. Also, the final draft has been sent to the EU Parliament. The EU Parliament can issue an opinion, but cannot block its approval.

The Article 31 WP will meet today to review the text. Normally, the committee has two weeks to issue an opinion but the EU Commission expects an approval already this week.

After the GDPR, the ePrivacy Directive as next step on the EU Agenda

26. April 2016

The EU Parliament approved some weeks ago the new General Data Protection Regulation (GDPR). As a next step, the EU Commission has launched a public consultation on the evaluation and review of the ePrivacy Directive, as part of the Digital Single Market Strategy proposed by the EU Commission in May 2015. The consultation started on the 12th April and will be open until the 5th July 2016.

The current ePrivacy Directive was initially adopted for the telecoms sector. However, most of the EU Member States have also extended its application to other sectors. This Directive is also known as “cookie law”, but it also regulates the confidentiality of communications, the obligation to notify data breaches, the scope and definition of unsolicited communications, etc.

The “update” of the ePrivacy Directive is necessary in order to achieve a higher harmonization at all levels, including the field of electronic communications, and to complement the GDPR. The head of unit for policy and consultation at the EU Data Protection Supervisor, Sophie Louveaux, unofficially stated that the modification of the ePrivacy Directive is a priority regarding privacy issues and that a “full coherence” between the GDPR and the ePrivacy Directive should be achieved.

The legislative proposal for a new ePrivacy Directive is expected by the end of 2016.

Fact Sheet of the European Commission about the EU-U.S. Privacy Shield

1. March 2016

On the 29th February 2016, the European Commission released a fact sheet about the Frequently Asked Questions related to the EU-U.S. Privacy Shield. The EU-U.S Privacy Shield aims at regulating international data transfers between the EU (including EEA countries Norway, Lichtenstein and Iceland) and the U.S. after the Safe Harbor Decision was declared invalid by the ECJ on October 2015.

The EU-U.S Privacy Shield is a new adequacy decision, under which the U.S. companies that comply with the described data protection principles and abide the obligations described in the framework, will be considered as ensuring an adequate level of data protection.

In contrast to the former Safe Harbor Decision, the EU-U.S. Privacy Shield imposes stronger obligations on companies related to monitoring and enforcement and prevents generalized access to EU personal data from U.S. public Authorities.

Under the Privacy Shield, U.S. companies will have to self-certify that they meet the requirements described in the Framework. The U.S. Department of Commerce will actively verify that the certifying company actually meets the requirements to certify, for example by reviewing the company´s privacy policy.

A key aspect of the Privacy Shield is the possibility for EU data subject to obtain redress in the US in case that their personal data is misused by commercial companies. The possibility to redress involves the following alternatives for the data subject:

  • to lodge a complaint with the company itself, or
  • to complaint towards their local DPA, or
  • to use the Alternative Dispute Resolution (ADR) mechanisms, or
  • through arbitration by having recourse to the Privacy Shield Panel, if the case is not resolved by any of the abovementioned alternatives.

The possibility to redress with regard to national security will be ensured by the institution of the Ombudsman.

All these aspects of the new EU-U.S. Privacy Shield have been reflected in the Judicial Redress Act, signed on February, 24th. This Act gives EU citizens the possibility to address privacy issues to U.S. Courts in relation to personal data transfers for law enforcement purposes. This Act aims at providing EU citizens with the same rights as U.S. citizens.

Also, the so called EU-U.S. “Umbrella-Agreement” covers relevant aspects of data protection regarding EU-U.S. law enforcement cooperation for the purposes of crime and terrorism prevention. This agreement is not a legal basis for data transfers itself, but it will provide safeguards for data transfers made under other existing agreements.

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