Category: EU

The Dutch DPA (Autoriteit Persoonsgevens) investigates several Data Processing Agreements

23. January 2019

Since the EU General Data Protection Regulation (GDPR) entered into force on May 25, 2018, the Dutch DPA regularly reviews whether organizations comply with data protection regulations. For example, the DPA previously investigated organizations (inter alia hospitals, banks, insurers) regarding their data protection officers and/or whether they keep a register of processing activities.

The Dutch Data Protection Authortiy, the so called Autoriteit Persoonsgevens, announced last week on its website that it had asked 30 private organizations to provide their Data Processing Agreements in use. The organizations in question mainly operate in the field of energy, media and trade.

Art. 28 GDPR states that a data controller must have a data processing agreement (DPA) with a data processor when the ladder is carrying out the data processing on behalf of the controller. This is for example the case when an organization outsources IT facilities. The controller remains responsible for the protection of the personal data and is only allowed to engage processors which can offer sufficient guarantees to ensure those requirements. Especially, the agreement must specify the type and categories of data that will be processed and the duration as well as the nature and purpose of the processing.

Political parties will be sanctioned for data breaches

22. January 2019

On Wednesday, 16th January 2019, EU Parliament and member state negotiators agreed that parties or political foundations can be sanctioned for data protection breaches during election campaigns. This regulation is intended to prevent any influence on the forthcoming European elections in May. It was decided that in such cases affected institutions would have to pay up to five percent of their annual budget in future.

One of the reasons for the new regulation was the data scandal surrounding Facebook and Cambridge Analytica. During the US election campaign, Facebook gained unauthorized access to the data of millions of its users. With this data, Cambridge Analytica is said to have tried to prevent potential Clinton supporters from voting and to mobilise Trump voters by means of advertising and contributions (we reported).

In future, data protection violations that are deliberately accepted in order to influence the outcome of European elections will be severely sanctioned. National supervisory authorities are to decide whether a party has violated the regulation. The Authority for European Political Parties and European Political Foundations must then review the decision and, if necessary, impose the appropriate sanction. Moreover, those found to be in breach could not apply for funds from the general budget of the European Union in the year in which the fine is imposed.

The text adopted on Wednesday still has to be formally adopted by Parliament and the Council of Member States.

Brexit: Impact on data protection after “May’s deal” has been rejected

18. January 2019

Prime Minister Theresa May’s draft withdrawal agreement to regulate Brexit was rejected by a clear majority of parliamentarians on 15th January. The draft withdrawal agreement has been agreed in November 2018 by the United Kingdom (UK) and the European Union (EU) – we reported: Brexit: Draft withdrawal agreement – GDPR remains applicable for foreseeable future – containing a transition period of 21-months in order to facilitate business sectors in their planning. Because of the recent rejection of the withdrawal agreement by the British Parliament, the scenario of the UK disorderly leaving the EU has now become quite likely. Among various economic and EU law issues, Brexit has also a concrete impact on data protection.

In case of a Brexit without corresponding transitional rules, the UK would be regarded as a third country under the General Data Protection Regulation of the EU (GDPR) as of 29th March 2019. This was also confirmed by Prof. Dr. Dieter Kugelmann, the State Data Protection Officer of Rheinland-Pfalz: “The fact is that the United Kingdom will become a “third country” within the meaning of the GDPR after leaving the EU.” Thus, an adaquacy decision would be required to transfer personal data of EU citizens or from the EU to the UK in the absence of any other mechanisms ensuring an adequate level of data protection according to Art. 44 ff. GDPR.

Since many companies currently transfer customer or employee data to the UK as well as a lot of data centres of service providers are located there, the Brexit will cause a need for adaption in terms of data protection matters. After the Brexit these Companies must ensure that there is an adequate legal basis for the relevant data transfers to the UK. Furthermore, according to Art. 13, 14 GDPR, the data subjects must be informed regarding the transfer of personal data outside the EU/EEA. All privacy policies on websites, privacy notices to employees etc. therefore would have to be adjusted. In the event of a data subject’s request for information, Art. 15 GDPR stipulates that the data subject must be informed about the transfer of his/her personal data to a third country. When personal data are transferred to the UK deemed as a third country, companies would eventually have to adjust their records of processing activities pursuant to Art. 30 GDPR.

It is recommended that in particular those companies transferring a lot of personal data to the UK at least are aware of these potentially required adaptations in order to further ensure compliance with EU data protection laws. As the GDPR, principally does not privilege any group of companies, the aforementioned recommendation also apply to data flows within such groups.

CNIL publishes guidance on data sharing

At the end of last year, the French Data Protection Authority (“Commission Nationale de l’Informatique et des Libertés”, the “CNIL”) published guidance on sharing data with business partners or third parties. The CNIL stated that many companies that collect data from individuals transfer this data to “business partners” or other organisations especially to send prospecting emails. In case of a transmission the data subjects must maintain control over their personal data .

The published guidance state the following five requirements:

• Prior consent: Before sharing data with business partners or third parties such as data brokers, organisations must request the individual’s consent.

• Identification of the partners: The individuals must be informed of the specific partner(s) who may receive the data. According to the CNIL’s guidance, the organisation can either publish a complete and updated list containing the organisation’s partners directly on the data collection form or if such a list would be too long, it can integrate a link to the collection form. This should be inserted together with a link to their respective privacy policies.

• Information of changes to the list of partners: The organisations have to notify the individuals of any changes to the list of partners, especially if they may share the data with new partners. Therefore, they may provide an updated list of their partners within each marketing message sent to the individual and each new partner that receives the individual’s data must inform him or her of such processing in its first communication to the data subject.

• No “transfer” of the consent: Companies may not share the information they receive with their own partners without obtaining the consent of individuals, in particular with regard to the identity of new companies that would become recipients of the subject’s data.

• Information to be provided by the partner(s): The partner who received the individual’s data for their own marketing purposes must inform the data subject of the origin (name of the organisation who shared the data with them) and inform them of their data subject rights, in particular the right to object to the processing.

Category: EU · French DPA
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Austrian DPA dismisses complaint concerning validity of Cookie Consent Solution

14. January 2019

The Austrian Data Privacy Authority (“DPA”) decided on a complaint, lodged by an individual, concerning the compliance of the cookie consent solution of an Austrian newspaper with the General Data Protection Regulation (“GDPR”).

The complainant argued that the consent was not given voluntarily, since the website was no longer accessible after the revocation of consent to marketing cookies. Further use of the website required payment. Therefore, according to the complainant, provision of the service depends on consent to the processing of personal data.

The Austrian newspaper grants users free access to the content of the website, provided that they agree to the use of cookies for advertising purposes. If this consent is revoked, the website will no longer be usable and the window for giving consent will reappear. Alternatively, in the same window, users can choose to subscribe to a paid subscription. For currently 6 euros per month users get access to the entire content of the site, without data tracking.

The DPA explained that consent is only given involuntarily if a disadvantage is to be expected if consent is not given. Referring to Article 29 Working Party’s Guidelines on Consent, the DPA stated that such a disadvantage arises when there is a risk of deception, intimidation, coercion or significant adverse consequences. Yet there is no such disadvantage here. In fact, after giving consent, the user of the website even gains an advantage because he gets full access to the newspaper’s services. Furthermore, if the user does not wish to give his consent, he can still use another online newspaper.

With its decision, the Austrian DPA set a welcome signal for other online newspapers that finance themselves through advertising revenues.

Uber to pay another fine for 2016 data breach

27. December 2018

Uber’s major data breach of 2016 still has consequences as it has also been addressed by the French Data Protection Authority “CNIL”.

As reported in November 2017 and September 2018, the company had tried to hide that personal data of 50 million Uber customers had been stolen and chose to pay the hackers instead of disclosing the incident to the public.

1,4 million French customers were affected as well which is why the CNIL has now fined Uber 400K Euros (next to the settlement with the US authorities amounting to $148 Million).

The CNIL came to find out that the breach could have been avoided by implementing certain basic security measures such as stronger authentication.

Great Britain and the Netherlands have also already imposed a fine totalling €1 million.

Google changes Privacy Policy due to GDPR

19. December 2018

As it is widely known these days, the General Data Protection Regulation (GDPR) came into force earlier this year to standardize data protection regulation in the EU. This has now lead to the fact that Google will update the company’s terms of service and privacy policy to be compliant with the GDPR.

The company started to notify the countries in the European Economic Area (EEA) and Switzerland in regard to some upcoming changes. They will come into effect on January 22, 2019.

The most important update, also legally, is the change of the data controller. The Google Ireland Limited will become the so called “data controller” who is responsible for the information of European and Swiss users . Therefore, Google Ireland Limited will be in charge to respond to request from users and to ensure compliance with the GDPR. At present, these services are provided by Google LLC, based in the U.S.

For website operators this means that they might also have to adapt their privacy policy accordingly. This is the case, for example, if Google Analytics is used.

Furthermore, there are no changes in regard to the current settings and services.

Guidelines for Binding Corporate Rules issued in Argentina

18. December 2018

The Argentine Authority of Access to Public Information (Agencia de Acceso a la Información Pública – AAIP) has recently issued its guidelines for Binding Corporate Rules (BCRs) on international data transfer. The Binding Corporate Rules are a mechanism for multinational corporations to legitimize international transfers of personal data within the group. This tool for creating a contractually binding “code of conduct” regarding international data transfers was evolved in the EU and has also been incorporated expressly in Article 47 GDPR. BCRs have been designed as a global solution to comply with the principles of data protection and thus create an adequate level of data protection (cf. Art. 44, 47 GDPR).

Like the GDPR, the Argentine Personal Data Protection Law No. 25, 326 does not permit the cross-border transfer of personal data to countries or international organizations that do not provide an adequate level of data protection. Such transfers would be allowed in accordance with Regulatory Decree No. 1558/2001 when the data subjects expressly gave their consent to the transfer; an appropriate international data transfer agreement is in place; or an adequate protection level arises from self-regulation systems.

According to Regulation 159/2018 published Dec. 7, 2018, the AAIP has now approved guidelines for such BCRs that legitimize international data transfer to countries or international organizations that have not been recognized as providing an adequate level of data protection.

These guidelines provide a framework of principles for a self-regulation mechanism reflecting the requirements and conditions imposed by the Argentine Personal Data Protection Law. The rules of the self-regulation system have to be legally binding upon all members of the corporate group as well as employees, subcontractors and third-party beneficiaries (e.g. data subjects, AAIP). Among other things, those BCRs must consider lawfulness conditions of processing, data subjects’ rights and specific protection concerning sensitive aspects. Furthermore, the subsequent cross-border data transfer to those entities providing a non-adequate level of data protection shall be restricted, data subjects shall be able to place a judicial or administrative complaint and under the BCRs must an appropriate staff data protection training has to take place with regard to data processing activities.

The AAIP shall eventually be entitled to engage in international data transfers originating from an Argentine entity as data exporter and – as third-party beneficiary – in those cases in which personal data of subjects in Argentina is affected.

However, the approval of the AAIP of BCRs that follow the requirements of Regulation No. 159/2018 is not required. In the case a group of companies would rely on BCRs that differ from those conditions though, the relevant documents need to be submitted to the AAIP for approval within the term of 30 calendar days from the date that the transfer took place.

As a valid mechanism to legitimize the international transfer of data within a group of companies, the use of BCRs is been reasonably expected to increase when it comes to in Argentina.

Spain publishes new data protection law

11. December 2018

On December 6, 2018, the new Spanish data protection law was published in the “Boletín Oficial Del Estado”. The “Ley Orgánica de Protección de Datos Personales y Garantía de los Derechos Digitales” (Organic Law on Data Protection and Digital Rights Guarantee) has been approved with 93% parliamentary support and implements the GDPR into national law.

The new law contains a number of regulations that will affect data processing operations. For example that the consent of a data subject is not enough to legitimate the processing of special categories of data if the main purpose is e.g. to identify an individual’s racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership or genetic data.

The law also includes a list of cases in which entities must appoint a data protection officer for example entities that operate networks and provide electronic communications services, education centres and public and private universities. All businesses have up to 10 days after (mandatory or voluntary) appointing a data protection officer to notify the Spanish Data Protection Authority of that fact.

However, one of the biggest changes is the introduction of new digital rights such as the right to universal access to the internet; the right to digital education; the right to privacy and use of digital devices in the workplace; the right to digital disconnection in the workplace; the right to privacy in front of video surveillance devices and sound recording at work; the right to digital will.

400,000€ fine for a Portuguese hospital

24. October 2018

The Portuguese data protection supervisory authority CNPD (Comissão Nacional de Protecção de Dados) recently announced that the hospital Barreiro Montijo is to pay a fine of 400,000€ for incompliancy with the EU General Data Protection Regulation (GDPR). This is the first time that a high fine has been imposed in Europe based on the new GDPR framework of fines.

According to Portuguese newspaper Público, the hospital has violated the GDPR by allowing too many users to have access to patient data in the hospital’s patient management system, even though they should only have been visible to medical doctors. In addition, too many profiles of physicians have been created in the hospital system. The CNPD discovered that 985 users with the access rights of a medical doctor were registered, although only 296 physicians were employed in 2018.

The hospital now wants to take legal action against the fine.

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