Category: EU

European Data Protection Supervisor issues opinion on EU-U.S. Privacy Shield

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.

Category: EU · General
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Renegotiation of the Privacy Shield

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.

Category: EU · Safe Harbor · USA
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Update EU-U.S. Privacy Shield: Article 31 needs more time to consider the implications of the proposal

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.

EU Directive on Cyber Security to be expected in August 2016

19. May 2016

The EU Council adopted this week the Network and Information Security Directive (NIS Directive) at first reading. The NIS Directive is part of the EU cyber security strategy, which main objective is to prevent and respond to disruptions and cyber-attacks in telecommunications systems located in the EU.

The Directive aims at achieving a minimum level of IT security and implementing an effective risk management culture for digital technologies. Furthermore, it also aims at dealing with IT security breaches by imposing the obligation to report significant incidents without delay, especially for business or organizations whose main activity is subject to a higher risk, such as cloud providers or social networks.

The five main goals of the NIS Directive are:

  • To achieve cyber resilience
  • To reduce cybercrime significantly
  • To develop a cyber defense policy at EU level by creating authorities at national level
  • To promote the development of technological resources
  • To implement a solid international cyberspace policy

After the EU Council has adopted the NIS Directive at first reading, the draft must be approved by the EU Parliament at second reading. If the EU Parliament approves the Directive, it might enter into force in August 2016.

European Court of Justice´s General Advocate: Dynamic IP Addresses are personal data

18. May 2016

Background

In 2014, Mr. Breyer filed a suit against the Federal Republic of Germany regarding the storing of IP Addresses. Several German public bodies operate internet websites that are publicly accessible. In order to avoid and be able to prosecute criminal attacks, the access to these websites is protocolled, including names, retrieved data/website, words searched in the search fields, date and time of retrieval, data transmitted and the IP Address of the device in question.

Mr. Breyer requested that neither the Federal Republic of Germany nor third parties store the IP Address of users that accesses these websites, as there was no consent for this processing and the storage was not based on the recovery due to a disruption of the service.

Prejudicial question from the German Federal Supreme Court (Bundesgerichtshof)

The suit from Mr. Breyer was dismissed in the First Instance. However, the appeal succeed partly and the Federal Republic of Germany was sentenced not to store IP Addresses for a longer period of time than that of the access in question. Though, this was subject to the condition that Mr. Breyer provided his personal data when he accessed the website. Both parties appealed to the German Federal Supreme Court, who submitted the following questions to the ECJ:

Question 1: Must the Data Protection Directive 95/46/EC be interpreted as meaning that an Internet Protocol address (IP Address) which a service provider stores when his website is accessed already constitutes personal data for the service provider if a third party (an access provider) has the additional knowledge required in order to identify the data subject?

Question 2: Does the Data Protection Directive 95/46/EC preclude a provision in national law under which a service provider may collect and use a user’s personal data without his consent only to the extent necessary in order to facilitate, and charge for, the specific use of the telemedium by the user concerned, and under which the purpose of ensuring the general operability of the telemedium cannot justify use of the data beyond the end of the particular use of the telemedium?

Position of the ECJ General Advocate

The ECJ General Advocate answers the above questions as follows:

To question 1: A dynamic IP Address, through which a user has retrieved a website from a telemedia service provider, constitutes for the latter a personal data to the extent that the service provider has enough additional information, which connected with the IP-Address makes possible to identify the user. Dynamic IP-Addresses contain information regarding the time and date in which a website was accessed from a device. This data can provide information about behavioural patterns that can affect the right to privacy of individuals. Additionally it can also provide additional information about a user if it is connected to other personal data.

To question 2: The finality to guarantee the operability of the telemedium should be basically seen as a legitimate interest that justifies the processing of an IP Address. This legitimation can be only alleged if it has primacy over the fundamental rights of the data subject. A national legal disposition that does not allow such legitimate interest, is not consistent with the Data Protection Directive 45/95/EC.

What to expect regarding IP addresses with the GDPR?

The problematic of the IP Addresses may be solved with the GDPR, as the Recital 30 enumerates, among others, also IP addresses as examples of personal data. As such, they can lead to identify an individual if combined with other information, therefore they fall under the scope of the GDPR and they are to be handled as personal data.

 

 

Serious data breach in HIV clinic in London

11. May 2016

A clinic in London has been fined 180.000 GBP due to a “serious data breach”. The clinic offered a service to HIV-patients in order to receive newsletters and test results as well as make appointments via email. It sent an email newsletter to 781 of its patients with all patient emailaddresses in the “To” field and not in the “Bcc” field. 730 of the emailaddresses included the full names of the patients. The newsletter was used to inform the patients about sexual health services and general treatment details. The Information Commissioner´s Office (ICO) said, “the breach caused a great deal of upset to the people affected”. Information about the health or sexual life of a person is considered to be sensitive personal data and should be protected specifically. Chelsea and Westminster Hospital NHS Foundation Trust, which runs the clinic, has been fined 180.000 GBP. The responsible ICO investigation trust discovered, that a similar error had happened already in March 2010. Although some remedial measures were taken at that time, no specific training had taken place since then.

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.

EU Parliament approved on Passenger Name Record

22. April 2016

Due to the fact that security specialists and the EU member states have pushed for European rules on Passenger Name Record (PNR) for years, the latest acts of terror in Europe just increased these requestes. These demands have been met by EU Parliament as it approved the bill concerning a more systematic collection, use and retention of data on international airline passengers on 14 April 2016.

However, a first attempt on implementing rules on the use of PNR was rejected in 2013 due to concerns about the necessity and scope of the proposal and its compliance with fundamental rights. The civil liberties committee then discussed a new draft text on PNR on 26 February 2015 and on 15 July 2015 this text was adopted. Safeguards were included ensuring the lawfulness of any use of the data, so that the data should only be used in order to fight terrorism and serious international crime. After negotianting EU Parliament and the Council reached a provisional deal on 4 December 2015. During a plenary session on 14 April 2016 the text was then approved by 461 votes to 179, with nine absentions.

About 28,000 data protection officers are requiered to be appointed under the GDPR

20. April 2016

Article 37 of the GDPR states that data controllers and processors of personal information are required to appoint a data protection officer in cace:

(a)  The processing is carried out by a public authority or body (except courts); or

(b)  The controller’s or processor’s “core activities” require “regular and systematic monitoring of data subjects on a large scale” or consist of “processing on a large scale of special categories of data.”

A data protection officer is able to be appointed by a group, public authorities or individual legal entity. Article 39 of the GDPR requires that a data protection officer is “designated on the basis of professional qualities and, in particular, expert knowledge of data protection law and practices”. Compliance, trainings on how to process data according to the law and the communication with the national authorities are part of the task area of a data protection officer.

Therefore, due to the GDPR organizations worldwide have to prepare for a number of new requirements in terms of data collection and processing. One particular requirement is that certain organizations will now have to appoint a data protection officer according to Arcticle 37 of the GDPR, as mentioned above. Research indicates the number of data protection officers required to be appointed under the GDPR will be about 28,000. This is an estimate based on official statistics regarding both public and private sector data controllers in the EU and taking further assumptions into account such assuming that US companies obliged to comply with the GDPR would also require a data protection officer, and of those companies who self-certified under Safe Harbor are likely included in that number.

Criticism at Google’s ‘right to be forgotten’ position

The New York Times reports that crisicism is raised among European data protection regulators and politicians on Google’s secretive process for deciding whose “right to be forgotten” cases end with a stricken link and whose do not. The lack of the company’s transparency is not the only concern regarding how a private organization has autonomy in these cases instead of the government. Furthermore, Google has ruled on double the amount of national authorities’ privacy judgments. “If Europe really wanted to regain control over personal data, giving Google this type of power is an odd outcome,” concluded Oxford University’s Luciano Floridi.

The criticism is also raised as a result of a general growing discontent from both European regulators and politicians due to the fact that national data protection agencies sometimes lack the financial, technical and human resources to handle the substantial increase of “right to be forgotten” requests, according to regulatory officials and legal experts.

Category: EU · USA
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