Category: EU

French Data Protection Commission threatens WhatsApp with sanctions

21. December 2017

The French National Data Protection Commission (CNIL) has found violations of the French Data Protection Act in the course of an investigation conducted in order to verify compliance of WhatsApps data Transfer to Facebook with legal requirements.

In 2016, WhatsApp had announced to transfer data to Facebook for the purpose of targeted advertising, security and business intelligence (technology-driven process for analyzing data and presenting actionable information to help executives, managers and other corporate end users make informed business decisions).

Immediately after the announcement, the Working Party 29 (an independent European advisory body on data protection and privacy, set up under Article 29 of Directive 95/46/EC; hereinafter referred to as „WP29“) asked the company to stop the data transfer for targeted advertising as French law doesn’t provide an adequate legal basis.

„While the security purpose seems to be essential to the efficient functioning of the application, it is not the case for the “business intelligence” purpose which aims at improving performances and optimizing the use of the application through the analysis of its users’ behavior.“

In the wake of the request, WhatsApp had assured the CNIL that it does not process the data of French users for such purposes.

However, the CNIL currently not only came to the result that the users’ consent was not validly collected as it lacked two essential aspects of data protection law: specific function and free choice. But it also denies a legitimate interest when it comes to preserving fundamental rights of users based on the fact that the application cannot be used if the data subjects refuse to allow the processing.

WhatsApp has been asked to provide a sample of the French users’ data transferred to Facebook, but refused to do so because being located in die United States, „it considers that it is only subject to the legislation of this country.“

The inspecting CNIL thus has issued a formal notice to WhatsApp and again requested to comply with the requirements within one month and states:

„Should WhatsApp fail to comply with the formal notice within the specified timescale, the Chair may appoint an internal investigator, who may draw up a report proposing that the CNIL’s restricted committee responsible for examining breaches of the Data Protection Act issue a sanction against the company.“

 

WP29 releases opinion on joint review of Privacy Shield

11. December 2017

The Working Party 29 (WP29),  an independent European advisory body on data protection and privacy, has evaluated the Privacy Shield agreement  (framework for transatlantic exchanges of personal data for commercial purposes between the European Union and the United States, see also our report on One year of Privacy Shield).

In its joint review, the WP29 focusses on the assessment of commercial aspects and governmental access to personal data for national security purposes.

Though acknowledging progress, the WP29 still finds unresolved issues on both sides.

It criticizes the lack of guidance and clear information on the principles of the Privacy Shield, especially with regards to onward transfers, the rights of the data subject and remedies.

The US authorities are further requested to clearly distinguish the status of data processors from that of data controllers.

Another important issue to be tackled is the handling of Human Resource (HR)  data and the rules governing automated-decision making and profiling.

Also, the process of self-certification for companies requires improvement.

In terms of access by public authorities, the WP 29 concludes that the US government has made effort to become more transparent.

However, some of the main concerns still are to be resolved by May 25th, 2018.

The WP 29 calls for further evidence or legally binding commitments to confirm non-discrimination and the fact that authorities don’t get access on a generalized basis to data transferred to the USA from the EU.

Aside from these matters, an Ombudsperson still needs to be appointed and her/his exact powers need to be specified. According to the WP 29, the existing powers to remedy non-compliance are not sufficient.

In case no remedy is brought to these concerns in the given time frames, the members of WP29 will take appropriate action, including bringing the Privacy Shield Adequacy decision to national courts for them to make a reference to the Court of Justice of the European Union (CJEU) for a preliminary ruling.

Irish High Court refers Facebook case to the CJEU

6. October 2017

On October 3rd 2017, the Irish High Court publicised it will refer the Facebook case to the Court of Justice of the European Union (CJEU). The lawsuit is based on a complaint to the Irish Data Protection Commissioner filed by Max Schrems, an Austrian lawyer and privacy activist. Schrems was also involved in the case against Facebook resulting in the CJEU’s landmark decision declaring the Commission’s US Safe Harbour Decision invalid.

In his new complaint, Schrems is challenging the data transfers of Faceook to the US on the basis of the “Model Contracts for the transfer of personal data to third countries”, also known as standard contractual clauses (SCCs). Schrems himself said, “In simple terms, US law requires Facebook to help the NSA with mass surveillance and EU law prohibits just that.”

In contrast to Schrems, the Irish Data Protection Commissioner challenged the validity of the SCCs in general and not only in matters of Facebook. Due to the importance of the case, the Irish High Court referred it to the CJEU. The CJEU will now have to decide whether data transfers to the US are valid on the basis of the Commission’s Model Contracts. It remains to be seen what the CJEU will decide and if its decision will have an impact on the Privacy Shield framework.

Measures to strengthen the EU cybersecurity published

27. September 2017

On September 13, 2017 a joint communication to the European Parliament and the Council of the European Union on “Resilience, Deterrence and Defence: Building strong cybersecurity for the EU” was published. This should strengthen the EU regarding the response of cyber attacks.

The joint communication includes:

  • Greater EU resilience to cyber attacks
  • Better detect cyber attacks
  • Strengthen international cooperation on cybersecurity

and is part of a package of EU documents.

Cifas: Identity theft at epidemic level

24. August 2017

According to BBC.com, the fraud prevention group Cifas warns that cases of identity theft increase year by year in the UK. In the first six months of the year Cifas already recorded 89,000 cases, which is a 5% increase in relation to the same period of the last year and a new record.

BBC.com further reports that Simon Dukes, chief executive of Cifas, said: “We have seen identity fraud attempts increase year on year, now reaching epidemic levels, with identities being stolen at a rate of almost 500 a day.” It is further explained that “these frauds are taking place almost exclusively online. The vast amounts of personal data that is available either online or through data breaches is only making it easier for the fraudster.”

Fraudsters are targeting data such as the name, address, date of birth or bank account details. They gather these data by hacking computers, stealing mails or buying data through the “dark web”. Also, victims are tricked into giving away their personal data. However, most of the thefts, about 80%, are committed online and mostly without notice of the victims. The crimes often come to light, when for example the first random bill arrives.

The victims of impersonation were breaked down into categories of ages, showing that it is most likely that people in their 30s and 40s are victims of identity thefts, since about this group of people often a high amount of information was gathered online. It is further reported that according to Cifas, the amount of cases fell for the group of over-60s, while the group of 21 to 30 years old showed the biggest increase of cases.

Article 29 WP releases opinion on data processing at work

11. July 2017

The Article 29 Working Party (WP) has released their opinion on data processing at work on the 8th of June 2017. The Opinion is meant as an amendment to the previous released documents on the surveillance of electronic communications (WP 55) and processing personal data in employment context (WP 48). This update should face the fast-changing technologies, the new forms of processing and the fading boundaries between home and work. It not only covers the Data Protection Directive but also the new rules in the General Data Protection Regulation that goes into effect on 25th of May 2018.

Therefore they listed nine different scenarios in the employment context where data processing can lead to a lack in data protection. These scenarios are data processing in the recruitment process and in-employment screening (especially by using social media platforms), using monitoring tools for information and communication technologies (ICT), usage at home/remote, using monitoring for time and attendance, use of video monitoring, use of vehicles by employees, the disclosure of data to third parties and the international transfer of employee data.

The Article 29 WP also pointed out the main risk for the fundamental rights of the employees. New technologies allow the employer tracking over a long time and nearly everywhere in a less visible way. This can result into chilling effects on the rights of employees because they think of a constant supervision.

As a highlight the Article 29 WP gives the following recommendations for dealing with data processing in the employment context:

  • only collect the data legitimate for the purpose and only with processing taking place under appropriate conditions,
  • consent is highly unlike to be a legal base for data processing, because of the imbalance in power between the employer and the employee,
  • track the location of employees only where it is strictly necessary,
  • communicate every monitoring to your employees effectively,
  • do a proportionality check prior the deployment of any monitoring tool,
  • be more concerned with prevention than with detection,
  • keep in mind data minimization; only process the data you really need to,
  • create privacy spaces for users,
  • on cloud uses: Ensure an adequate level of protection on every international transfer of employee data.

Many companies have not started preparing for the GDPR

27. June 2017

The General Data Protection Regulation (GDPR) will be applicable to all EU Member States from May 25th 2018. The GDPR will not just apply to EU companies, but also to non-EU companies that have dealings with data subjects that are located in the EU (see also Art. 3 (2) GDPR).

Companies, in specific, that fall under the regulations of the GDPR should be prepared to fulfil the requirements that are stated by the GDPR, due to the risk of an imposition of a fine if they fail to comply with the GDPR. This is in particular relevant since the fines for infringements of the GDPR have increased significantly (see also Art. 83 GDPR).

The implementations that companies have to make to comply with the GDPR involve high expenses and probably will be more time consuming than expected in most cases, depending on the size and complexity of the company. Especially the time factor has to be considered since it is less than a year left until May 2018.

However, according to a report of TrustArc, 61 % of the asked companies have not yet started with the implementation of their GDPR compliance programs.

TrustArc interviewed 204 privacy professionals from companies of different industries that will fall under the GDPR. These companies were divided into three categories based on the count of their employees: 500-1000 employees, 1000-5000 employees and more than 5000 employees.

23 % stated that they have started with the necessary implementations, 11 % that the implementations are driven forward and just 4 % stated that they had finished all necessary implementations to reach GDPR compliance.

The Report also shows the cost that companies expect to be need to implement what will be necessary to comply with the GDPR. Overall, 83% expect that their expenses will be in the six figures.

European Commission: €110 million fine for Facebook

23. May 2017

According to an European Commission Press release from the 18 May 2017, Facebook was fined €110 million by the Commission for providing misleading information about the takeover of WhatsApp.

Facebook acquired WhatsApp in 2014. Back then Facebook informed the European Commission that it would not be able to establish reliable automated matching between the users of Facebook and WhatsApp. Two years later, in August 2016, Facebook announced an update to its terms of service and privacy policy. The update included the possibility to link phone numbers of WhatsApp users with their respective Facebook accounts.

According to the Press release and contrary to the statement given by Facebook during the merger process 2014, the Commission has found that the possibility of automated linking of Facebook and WhatsApp users already existed in 2014.

Commissioner Margrethe Vestager, who is in charge of the competition policy, said: “Today’s decision sends a clear signal to companies that they must comply with all aspects of EU merger rules, including the obligation to provide correct information.”

It is the first time that the European Commission has imposed a fine on a company for the provision of misleading information since the Merger Regulation came into force in 2004.

Existing concerns on Windows data protection laws infractions

22. February 2017

There still exists a European data protection authorities´ concern on the data collection practices in Windows 10. Even though the letter to Microsoft has been sent by the Article 29 Working Party (or WP29), the UK Information Commissioner’s Office (ICO) has expressed its serious worries.

Microsoft was therefore asked to explain in a very clear way the purposes and kinds of personal data, which are under processing, as this is still an issue, which remains unclear.

Last July even France`s CNIL has demanded Microsoft to “halt the excessive collection of data and the tracking of users’ browsing without their consent”, as it accused Microsoft of numerous data protection laws infractions, such as too wide personal data collection under the telemetry programme and tracking tool default activation (intended to the targeted advertising delivery) without consent or user knowledge.

As a response Microsoft has released to the market (in January) a new Windows 10 update – so called “Creators Update”. It includes a dashboard based on web, which allows users to choose the desired data-sharing level.

At the conference in Australia, which took place this Monday, Microsoft has also announced a second major Windows 10 release this year (with the Neon user-interface design elements project).

According to the WP29 though: “Even considering the proposed changes to Windows 10, the Working Party remains concerned about the level of protection of users’ personal data”.

“Microsoft should clearly explain what kinds of personal data are processed for what purposes. Without such information, consent cannot be informed, and therefore, not valid.”

Apart from Windows, the WP29 has also taken Facebook, WhatsApp and Yahoo under its magnifier, which are being suspected of data-protection laws violations.

Category: Article 29 WP · EU · Personal Data · UK
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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.

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