Category: EU
4. August 2016
Although companies began submitting their application to join the EU-U.S. Privacy Shield, the U.S. Department of Commerce did not immediately list their compliance.
Among others, Microsoft was one of the first businesses to certify that it complied with the new rules for transferring European Union citizens’ personal data to the U.S.
On its blog Microsoft published a statement by Vice President for EU Government Affairs John Frank saying “We expect it to be approved in the coming days”. Furthermore, he said “Going forward, any data which we will transfer from Europe to the U.S. will be protected by the Privacy Shield’s safeguards.”
The process for joining the EU-U.S. Privacy Shield includes a self-certification, which is charged by the U.S. Department of Commerce. The fee for processing their annual applications and adding them to the register ranges from $250 for organizations with revenue under US$5 million up to $3,250 for those with revenue over $5 billion.
However, organizations also have to pay in order to join an arbitration service or in terms of data protection authorities dealing with complaints.
29. July 2016
As already published the European Court of Justice had to clarify which Member State’s data protection laws should apply to data processing established within the EU but directed at a number of EU Member States.
Yesterday, the European Court of Justice ruled in the case VKI v. Amazon EU that “ (…) the processing of data (…) is governed by the law of the Member State in whose territory that establishment is situated.”
However, the European Court of Justice did not discuss the respective contract between Amazon and its customers stating that “Luxembourg law shall apply.”
Nevertheless, the European Court of Justice came to the conclusion that “It is for the national court to determine (…) whether Amazon EU carries out the data processing in question in the context of the activities of an establishment situated in a Member State other than Luxembourg.”
28. June 2016
After several months of negotiations regarding the legitimating instruments to carry out international data transfers, EU and U.S. negotiators agreed last week on the final changes of the proposed EU-U.S. Privacy Shield.
The initial draft of the EU-U.S. Privacy Shield was criticized by several European Institutions such as the Article 29 WP, the EDPS, Article 31 WP and the UK Data Protection Authority (ICO) for not offering enough safeguards for EU citizens regarding the protection of their personal data upon data transfers to the U.S.
The main critic of the EU-U.S. Privacy Shield was focused on the independency of the ombudsman and on the massive surveillance activities from American Authorities. Additionally, a follow up control mechanism regarding compliance with the EU-U.S. Privacy Shield was required by European negotiators.
EU and U.S. negotiators have agreed to improve the above mentioned aspects in order to ensure more guarantees on the protection of EU citizens’ personal data:
- The White House committed in writing to collect EU personal data only under certain circumstances and for targeted purposes.
- Data retention periods have been defined concretely: organizations will be obliged to delete personal data that is no longer needed for the purposes for which it was originally collected.
- The proposal will include a specification that the ombudsman will be an independent institution.
As a next step, the Article 31 WP, made up of representatives of the EU Member States, will decide if the amended text complies with European Data Protection legislation. Both, the EU Commission and the U.S. Government hope that the EU-U.S. Privacy Shield enters into force by August 2016.
Implications for the UK
After UK citizens have voted to leave the EU, a two-year-negotiation between the EU and the UK Government will take place. During this time, UK organizations will have to comply with European legislation, also regarding international data transfers. When the UK ceases to be an EU Member State, it will be considered as being a third country in terms of international data transfers and will have to ensure enough safeguards regarding the protection of personal data.
27. June 2016
On the 23rd June, UK celebrated a referendum to vote about UK´s EU membership. About 52% of the participants, voted for leaving the EU. The process of withdrawal from the EU will have to be done according to Art. 50 of the Treaty on the European Union and will take about two years until the process is completed.
The withdrawal of the UK´s membership will also have an impact on data protection rules. First of all, the GDPR will enter into force on the 25th May 2018, so that by this time, the UK will still be in process to leave the EU. This means that UK businesses will have to prepare and be compliant with the GDPR.
Additionally, if UK businesses trade in the EU, a similar framework to that of the GDPR will be required in order to carry out data transfers within the EU member states. The British DPA, ICO, published a statement regarding the existing data protection framework in the UK. According to ICO, “if the UK wants to trade with the Single Market on equal terms we would have to prove adequacy – in other words UK data protection standards would have to be equivalent to the EU´s General Data Protection Regulation framework starting in 2018”.
Currently, the GDPR is the reference in terms of data protection and organizations will have to prepare to be compliant and, even if the GDPR is not applicable to UK, a similar framework should be in place by the time the GDPR enters into force.
8. June 2016
The EDPS announced yesterday the launch of a new initiative that may help EU institutions, public bodies and private organizations to be compliant and prepare for the GDPR. This initiative relates to the accountability principle, which is explicitly mentioned in the GDPR. Accountability regarding the processing of personal data means:
- Implementing policies within the organization in order to achieve transparency
- Training employees and persons within the organization with regard to the implementation of the policies
- Monitoring the implementation of the policies
- Establishing procedures in order to identify incompliances and act against data breaches
The EDPS states that the accountability principle involves a culture change within organizations and means the promotion of sustainable data processing. This means that organizations should assess the fairness and legality of complex data processing operations. This involve that both, public bodies and private organizations, should develop a risk management strategy that addresses their specific needs, so that they are compliant with the GDPR upon its entry into force in May 2018.
This initiative has been firstly implemented at the EDPS institution itself by using questionnaires addressed to the Supervisors, the Director, the staff responsible for processing operations and the DPO. The implemented actions were also documented and followed up on a regular basis. The questions aimed at ensuring a control over the processing of personal data and the lawfulness of the processing.
7. June 2016
The Data Protection Authority of Hamburg just announced in a press statement that it checked the data transfers of 35 international organizations that are based in Hamburg.
After the judgment declaring the former Safe Harbor Framework by the European Commission invalid in October 2015 by the European Court of Justice, the DPA contacted organizations in Hamburg operating also in the U.S. and reviewed the transfer of personal data to the U.S. in order to determine whether other instruments are used than the Safe Harbor Framework. According to the mentioned press statement, the review has revelied that the majority of the companies had changed the legal basis of their transfers of data by implementing standard contractual clauses (SCC).
However, according to a report by Spiegel Online, there were three companies that did not change their legal basis for data transfer. Therefore, the three companies were fined:
Adobe (8.000 Euros), Punica (9.000 Euros) and Unilever (11.000 Euros)
As all three companies have changed the legal basis for data transfering during the proceeding, the DPA imposed a fine that was significantly smaller than the maximum of 300.000 Euros.
6. June 2016
On the 2nd June, the so called “Umbrella-Agreement” was signed between the EU and the U.S. This agreement aims at creating a cooperation framework between the EU and the U.S. regarding criminal law enforcement and the prevention of serious crime and terrorism.
Personal data covered under this agreement includes data exchanged between police and criminal Authorities of the EU Member States and the US Authorities for the purpose of prevention, investigation, detection and prosecution of criminal offences as well as terrorist acts. The data transfers will be carried out according to the existing legal frameworks and enough safeguards will be provided.
The agreement provides EU citizens an equal treatment with U.S. citizens before American courts regarding judicial redress and a full respect for fundamental rights.
However, this agreement does not provide a legal basis for data transfers but it is a complement to the existing and future frameworks between law enforcement authorities.
1. June 2016
The European Data Protection Supervisor (EDPS), Giovanni Buttarelli, issued this week his opinion on the EU-U.S. Privacy Shield. The EDPS is an independent EU institution created in 2004 that assesses EU institutions on policies and legislation related to privacy and data protection and cooperates with authorities in these matters.
The EDPS emphasized on the following key aspects related to the EU-U.S. Privacy Shield:
- The current draft is not solid enough and improvements should be made in order to withstand scrutiny before the ECJ.
- The Privacy Shield should offer a long-term solution regarding international data transfers to the U.S.
- The protection provided by the Privacy Shield should ensure the rights to redress, transparency, data privacy and oversight.
- It should also prevent from indiscriminate surveillance by American authorities.
- The draft should comply with the GDPR, including international data transfers.
- International companies should be aware of and comply with their obligations on privacy and data protection issues.
To sum up, the Privacy Shield should offer an equivalent data protection level to that existing in the EU.
The European Parliament approved a resolution concerning the European Commission reopening negotiations with US authorities on the EU-US Privacy Shield last week. Furthermore, the resolution intends to implement the recommendations of the Article 29 Working Party on the draft Privacy Shield adequacy decision.
The resolution that was approved by the majority of members of the European Parliament says that the executive still needs to improve the data transfer deal allowing US authorities to collect EU citizens’ data.
Although the Parliament’s opinion is not binding, it builds up pressure on the Commission in order to increase the level of data protection in the much discussed agreement.
After the Safe Harbour agreement was declared invalid last October due to the fact that it did not protect European citizens’ data once they were sent to the USA, the executive is now behind schedule as EU Justice Commissioner Vera Jourova and Digital Commissioner Günther Oettinger initially stated that the new agreement should go into effect by the end of June. However, in order for that to happen a group of diplomats from European member states have to sign their approval first. Nevertheless, although the diplomats were expected to vote on the Privacy Shield last week, they delayed their final decision as they scheduled new meetings up until the end of June.
Generally, the Commission has already finished the negotiations concerning the Privacy Shield with US authorities, though clarification on some points is needed. Commission spokesman Christian Wigand described the clarifications as realistic changes and not a drastic renegotiation of the agreement.
However, the Parliament’s resolution intends to take criticism from national privacy protectors of the European member states “fully” into account.
23. May 2016
On the 19th May, the Article 31 Committee, made up of representatives of the EU Member States, met in order to discuss the implications of the proposed draft of the EU-U.S. Privacy Shield. The Article 31 was created in order to reach decisions that require the approval of the EU Member States according to the Data Protection Directive 95/46/EC. This is the case, for example of the adoption of adequacy decisions, such as Safe Harbor in the past or the EU-U.S. Privacy Shield currently.
Article 31 concluded that it needed more time to reach a decision about the proposal. Moreover, a source of the Commission affirmed that further meetings in May and early June will take place. Also, the recommendations of the Article 29 WP are being taken into consideration before reaching a decision.
The decision of the Article 31 is expected by the end of June. The EU-U.S. Privacy Shield can be only adopted if a qualified majority of 16 Member States representing 65 percent of the EU population votes for the adoption of the Privacy Shield.
Until a decision is reached, Standard Contractual Clauses and Binding Corporate Rules can still be used to carry out international data transfers on a legal basis.
