Category: EU

Article 29 Working Party released Guidelines on Data Protection Officers, Data Portability & One-Stop Shop

19. December 2016

The European Article 29 Working Party just published Guidelines after their December plenary meeting.

These Guidelines include explanations in terms of the role of the Data Protection Officer, the mechanisms for data portability and how a lead authority will be established with regard to the one-stop shop. Furthermore, some guidance on the EU-U.S. Privacy Shield was also included.

When do you have to appoint a DPO?

Article 37 (1) of the GDPR states that a DPO has to be appointed

a) where the processing is carried out by a public authority or body

b) where the core activities of the controller or the processor consist of processing operations that require regular and systematic monitoring of data subjects on a large scale

or c) where the core activities of the controller or the processor consist of processing on a large scale of special categories of data.

How does the Article 29 Working Party define these requirements?

“Core activities” are defined as the “key operations necessary to achieve the controller’s or processor’s goals.” The Article 29 Working Party gives the following example: a hospital needs to process health data as core to its ultimate activity of providing health care services.

Therefore, companies have to ask themselves whether the processing of personal data is a inextricably part for archiving their goals.

 

“Large scale” refers to the number of data subjects and not the company’s size.

The Working Party 29 defines the following identification aspects for a “large scale”:

  • The number of data subjects affected.
  • The volume of data and/or the range of different data items being processed.
  • The duration, or permanence, of the data processing activity.
  • The geographical extent of the processing activity.

However, the Working Party 29 welcomes feedback on the Guidelines from stakeholders through January 2017. Comments can be sent to just-article29wp-sec@ec.europa.eu and presidenceg29@cnil.fr.

 

The latest news concerning the dispute in terms of the “right-to-be-forgotten”

13. December 2016

Peter Fleischer, a global privacy counsel, raised the question: „Should the balance between the right to free expression and the right to privacy be struck by each country?“

In basic terms, the right-to-be-forgotten is a right of every European citizen to demand the erasure of certain links from the internet. However, this can also be seen as cencorship and rewriting history, which is why there is a neverending debate upon this topic.

The French Data Protection Authority, CNIL, has demanded an ultimate right-to-be-forgotten, which would mean that French data could be demanded to be removed, for example from Google search, from all over the world.

The problem which might occur is that also non-democratic countries have to follow this rule in theory. One might argue that the internet can be seen as as an independent source of infromation that is now being endangered.

Google disagrees with the idea that the right-to-be-forgotten should also be applied upon the countries outside the Europe.

Google’s only confirmation is that it is acting in accordance with the local laws as well as within the standards set by the European Court. What is more, Google makes a promise to remove the respective links from all European Google versions simultaneously.

Nevertheless, it has also beeen pointed out that one still could have found a link on the non-European version of Google.

As a feedback Google has delisted links as well on Google.com, Google.co.kr and Google.com.mx.

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”.

 

 

Use of encryption App increases after US election

6. December 2016

BuzzFeed News reported, that after electing Donald Trump the App called Signal has been faced with a 400 percent rise in daily downloads.

This App is a secure communications tool and therefore well-known in terms of technology, journalism and politics. When using this App people are able to text and speak with one another by encrypting end-to-end, so that only the sender and the intended recipient can read or hear the respective message.

The founder of the App called Signal, Moxie Marlinspike, released a statement saying that “There has never been a single event that has resulted in this kind of sustained, day-over-day increase.” Marlinspike explained that “Trump is about to be put in control of the most pervasive, largest, and least accountable surveillance infrastructure in the world (…) People are maybe a bit uncomfortable with him.”

 

ICO: confirmation about new guidelines in terms of the GDPR

30. November 2016

Elizabeth Denham, UK Information Commissioner, participated at the Annual Conference of the National Association of Data Protection and Freedom of Information Officers during which she gave a keynote speech. In her statement Denham explained that the UK prepares for the upcoming GDPR. She confirmed the government’s position that the GDPR will be implemented in the UK as well – Brexit aside.

Denham’s statement includes that the first regulatory guidance on the GDPR can be expected to be published by the Article 29 Working Party at the end of this year. It is believed that this guidance will probably make a number of key aspects of the GDPR of discussion.

Another point of her speech included the fact that the Article 29 Working Party is about to release a concept of risk under the GDPR and carrying out Data Privacy Impact Assessments at the beginning of 2017.

Furthermore, it was mentioned that the Article 29 Working Party aims to publish guidance in terms of certifications under the GDPR.

EU: Data sharing with USA in terms of security and terrorism

29. November 2016

This week, Reuters reported that the European Parliament lawmakers supported a data-sharing agreement with the USA, which aims at safeguarding the data exchange between national authorities, in order to improve security and simplify investigations in terms of terrorism.

Basically, the agreement supports personal data such as names, addresses and criminal records in case an exchange by law enforcement agencies in both Europe and the USA takes place.

Axel Voss explained that “EU citizens will have the same rights as U.S. citizens when they seek judicial redress before U.S. courts. This is a major step for the enforcement of fundamental rights for EU citizens.”

What triggered the implementation of such an agreement?

After the mass spying in 2013 by the USA, which caused privacy concerns over the question “What do enforcement agencies with the gained data after colleting it?” the need to find a regulation concerning the gathering, sharing and storing of personal data became more important than ever.

What is the following process?

It is expected that the entire Parliament approves this agreement on the 1st of Dezember 2016. From then on, the respective ministers for justice and home affairs of the 28 European Member States have to sign off the agreement in the coming weeks.

INTERPOL suggests that governments share terrorists’ biometric data

11. November 2016

The IAPP just published an article saying that INTERPOL calls on governments around the world to share terrorists’ biometric data in order to increase global security.

This statement was issued by INTERPOL’s General Assembly saying that it currently possesses information about 9,000 terrorists. However, only 10 percent of these files include biometric information. INTERPOL’s Secretary General, Jürgen Stock, explaines that this can be seen as “a weak link” in the prevention of terrorism.

On one side, some countries – among these are multiple ASEAN countries – have taken big steps with regard to data sharing as they have recently agreed to share biometric data for the purposes of counter-terrorism. On the other side, many governments are still discussing how to handle biometric data domestically. So the sharing of data would be one step ahead.

However, governments worldwide becoming more and more interested in biometric security which might help to fight terrorism. The mentioned suggestion of INTERPOL might also increase this kind of cooperation.

 

The Article 29 Working Party talks about the EU-U.S. Umbrella Agreement

2. November 2016

The Article 29 Working Party published a statement on the EU-U.S. Umbrella agreement at the end of October.

On one side, the statement shows signs of support for the EU-U.S. Umbrella Agreement. However on the other side, it delivers recommendations in order to make sure that the agreement is compliant with European data protection law.

In general, the Article 29 Working Party supports the creaction of a general data protection framework in order for international data transfers to be compliant with national, European and international data protection laws.  Therefore, the Article 29 Working Party elaborates that the respective agreement “considerably strengthens the safeguards in existing law enforcement bilateral treaties with the U.S., some of which were concluded before the development of the EU data protection framework”. 

However, it is also mentioned that clarification is needed in terms of definitions, for example how to define personal data and data processing, due to the fact that European and U.S law have different opinions on what is meant by these terms.

Amendments to adequacy decisions and decisions on European Model Clauses?

25. October 2016

After a meeting of the Article 31 Committee, the European Commission disclosed two drafts concerning the implementation of amendments to the existing adequacy decisions and decisions on EU Model Clauses.

First of all, adequacy decisions determine whether a third country provides adequate safeguards in order to protect personal data. These decisions are made by the Commission after an assessment of the national laws and international commitments in terms of data protection of the respective country. In the following, countries which are established to be adequate are added to the Commission’s “white list”. Therefore, data transfers can be made from the EEA to that country without any further legal requirements.

The opinion concerning these amendments is divided. Some European Member States which participated at the Article 31 Committee meeting were for implemnting theses amendments. However, other European Member States requested more time in order to consider the proposed changes.

Due to this conflict another meeting has to be scheduled to which the  Article 29 Working Party will be aksed to contribute by presenting its views on the respective changes.

Spains DPA: Investigations due to WhatsApp sharing data with Facebook

10. October 2016

After Hamburg’s Data Protection Commissioner strongly recommended that Facebook should stop processing German data gained from WhatsApp, after the U.K. Information Commissioner, the ICO, also started to investigate the agreement betweent WhatsApp and Facebook and after Italy’s data protection authority, the Garante, has started to look into this issue, now Spain’s data protection authority, the AEPD, raises concerns.

Therefore, Spain’s data protection authority advises users to read the terms and conditions especially before accepting them. Furthermore, it offers guidance on changing the respective settings.

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