Category: European Data Protection

Greek Data Protection Authority releases Guidance on Cookies

16. March 2020

On 25 February 2020, the Hellenic Data Protection Authority (DPA) published a guidance on Cookies and other tracking tools. Previously, the Authority had found that Greek websites and service providers have been largely failing to comply with the rules on the use of Cookies and other trackers set out by the ePrivacy Directive and the GDPR, and reaffirmed by the European Court of Justice’s ruling on Planet 49.

The guidance states that it will be relevant to HTTP/S Cookies, Flash Cookies, local storage applying to HTML 5, device fingerprinting, OS identifiers, and material identifiers.

The Greek DPA reiterated that, generally, providers are obliged to obtain the user’s consent if they are using any tracking tools – irrespective of whether the processing of personal data is taking place. It also outlined that technically necessary trackers are exempt from the obligation to consent. Furthermore, the guidance goes into detail on how information and consent can be made available on websites specifically.

Lastly, the Authority has given Greek website providers a grace period of two months to implement the provisions of this guidance and thereby become compliant with the European rules on tracking tools.

EDPB publishes GDPR Implementation Review

The European Data Protection Board (EDPB) released a review dated from February 18th, in a contribution to the evaluation of the General Data Protection Regulation (GDPR), which has reached its 20th month of being in effect.

Overall, the EDPB stated that it has a positive view of the implementation of the legislation in the different European Countries over the past 20 months. Furthermore, it deems a revision of the legislative text as likely, but not yet necessary in the near future.

The EDPB praised the Data Protection Authorities and their work up til now, saying it hopes that the cooperation between them will create a common data protection culture and consistent monitoring practices. But the report also mentioned that Supervisory Authorities in the countries face restrictions due to different national procedures and practices, which can hinder the cooperation. Furthermore, the EDPB sees a need to increase the funding for Supervisory Authorities to improve and support their duties.

On another note, the EDPB has acknowledged the challenges of implementation for Small to Medium sized Enterprises (SMEs). It says it is aware of these challenges, and works together with Supervisory Authorities to facilitate the supporting tools they have put out in order to support SMEs.

Lastly, it raised concerns about the timeframe of the new ePrivacy Regulation, and urged lawmakers to bundle their focus and efforts to carry on with its development.

Belgian DPA releases Direct Marketing Recommendation

4. March 2020

On February 10, 2020, Belgium’s Data Protection Authority (the Belgian DPA) has released their first recommendation of 2020 in relation to data processing activities for direct marketing purposes.

In the recommendation the Belgian DPA addressed issues and action proposals in regards to the handling of direct marketing and the personal data which is used in the process. It emphasized the importance of direct marketing subjects in the upcoming years, and stated that the DPA will have a special priority in regards to issues on the matter.

In particular, the recommendation elaborates on the following points, in order to help controllers navigate through the different processes:

  • The processing purposes must be specific and detailed. A simple mention of “marketing purposes” is not deemed sufficient in light of Art. 13 GDPR.
  • It is important to guarantee data minimization, as the profiling that accompanies direct marketing purposes calls for a careful handling of personal data.
  • The right to object does not only affect the direct marketing activities, but also the profiling which takes places through them. Furthermore, a simple “Unsubscribe” button at the end of a marketing E-Mail is not sufficient to withdraw consent, it is rather recommended to give the data subject the opportunity to a granular selection of which direct marketing activities they object to.
  • Consent cannot be given singularly for all channels of direct marketing. A declaration for each channel has to be obtained to ensure specification towards content and means used for direct marketing.

The Belgian DPA also stated that there are direct marketing activities which require special attention in the future, namely purchasing, renting and enriching personal data, e.g. via data brokers. In such cases, it is necessary to directly provide appropriate information to the data subject in regards to the handling of their data.

Further topics have been brought forth in the recommendation, which overall represents a thorough proposal on the handling of direct marketing activities for controller entities.

EDPS publishes opinion on future EU-UK partnership

3. March 2020

On 24 February 2020, the European Data Protection Supervisor (EDPS) published an opinion on the opening of negotiations for the future partnership between the EU and the UK with regards to personal data protection.

In his opinion, the EDPS points out the importance of commitments to fully respect fundamental rights in the future envisaged comprehensive partnership. Especially with regards to the protection of personal data, the partnership shall uphold the high protection level of the EU’s personal data rules.

With respect to the transfer of personal data, the EDPS further expresses support for the EU Commission’s recommendation to work towards the adoption of adequacy decisions for the UK if the relevant conditions are met. However, the Commission must ensure that the UK is not lowering its data protection standard below the EU standard after the Brexit transition period. Lastly, the EDPS recommends the EU Institutions to also prepare for a potential scenario in which no adequacy decisions exist by the end of the transition period on 31 December 2020.

Irish Data Protection Authority investigates Google’s processing of location data

6. February 2020

The irish data protection authorty (namely The Data Protection Commission (DPC)) is, in its role as Lead Supervisory Authority, responsible for Google within the European Union.

The DPC startet a formal investigation into Google’s practices to track its user’s location and the transparency surrounding that processing.

Following a number of complaints by serveral national consumer groups all across the EU, the investigation was initiated by the DPC.  Consumer organisations argue that the consent to “share” users’ location data was not freely given and consumers were tricked into accepting privacy-intrusive settings. Such practices are not compliant with the EU’s data protection law GDPR.

The irish data protection authority will now have to establish, whether Google has a valid legal basis for processing the location data of its users and whether it meets its obligations as a data controller with regard to transparency.

The investigation will add further pressure to Google. Google is facing a handful of investigations in Europe. The DPC has already opened an investigation into how Google handles data for advertising. That investigation is still ongoing. If Google is found not complying with the GDPR, the company could be forced to change its business model.

However, there are still a number of steps before the Irish DPC makes a decision including the opportunity for Google to reply.

Austrian Regional Court grants an Austrian man 800€ in GDPR compensation

20. December 2019

The Austrian Regional Court, Landesgericht Feldkirch, has ruled that the major Austrian postal service Österreichische Post (ÖPAG) has to pay an Austrian man 800 Euros in compensation because of violating the GDPR (LG Feldkirch, Beschl. v. 07.08.2019 – Az.: 57 Cg 30/19b – 15). It is one of the first rulings in Europe in which a civil court granted a data subject compensation based on a GDPR violation. Parallel to this court ruling, ÖPAG is facing an 18 Mio Euro fine from the Austrian Data Protection Authorities.

Based on people’s statements in anonymised surveys, ÖPAG had created marketing groups and used algorithms to calculate the probability of the political affinities that people with certain socioeconomic and regional backgrounds might have. ÖPAG then ascribed customers to these marketing groups and thus also stored data about their calculated political affinities. Among these customers was the plaintiff of this case.

The court ruled that this combination is “personal data revealing political opinions” according to Art. 9 GDPR. Since ÖPAG neither obtained the plaintiff’s consent to process his sensitive data on political opinions nor informed him about the processing itself, ÖPAG violated the plaintiff’s individual rights.

While the plaintiff demanded 2.500 Euros in compensation from ÖPAG, the court granted the plaintiff only a non-material damage compensation of 800 Euros after weighing up the circumstances of the individual case.

The case was appealed and will be tried at the Higher Regional Court Innsbruck.

Advocate General releases opinion on the validity of SCCs in case of Third Country Transfers

19. December 2019

Today, Thursday 19 of December, the European Court of Justice’s (CJEU) Advocate General Henrik Saugmandsgaard Øe released his opinion on the validity of Standard Contractual Clauses (SCCs) in cases of personal data transfers to processors situated in third countries.

The background of the case, on which the opinion builds on, originates in the proceedings initiated by Mr. Maximillian Schrems, where he stepped up against Facebook’s business practice of transferring the personal data of its European subscribers to servers located in the United States. The case (Schrems I) led the CJEU on October 6, 2015, to invalidate the Safe Harbor arrangement, which up to that point governed data transfers between the EU and the U.S.A.

Following the ruling, Mr. Schrems decided to challenge the transfers performed on the basis of the EU SCCs, the alternative mechanism Facebook has chosen to rely on to legitimize its EU-U.S. data flows, on the basis of similar arguments to those raised in the Schrems I case. The Irish DPA brought proceedings before the Irish High Court, which referred 11 questions to the CJEU for a preliminary ruling, the Schrems II case.

In the newly published opinion, the Advocate General validates the established SCCs in case of a commercial transfer, despite the possibility of public authorities in the third country processing the personal data for national security reasons. Furthermore, the Advocate General states that the continuity of the high level of protection is not only guaranteed by the adequacy decision of the court, but just as well by the contractual safeguards which the exporter has in place that need to match that level of protection. Therefore, the SCCs represent a general mechanism applicable to transfers, no matter the third country and its adequacy of protection. In addition, and in light of the Charter, there is an obligation for the controller as well as the supervisory authority to suspend any third country transfer if, because of a conflict between the SCCs and the laws in the third country, the SCCs cannot be complied with.

In the end, the Advocate General also clarified that the EU-U.S. Privacy Shield decision of 12 July 2016 is not part of the current proceedings, since those only cover the SCCs under Decision 2010/87, taking the questions of the validity of the Privacy Shield off the table.

While the Advocate General’s opinion is not binding, it represents the suggestion of a legal solution for cases for which the CJEU is responsible. However, the CJEU’s decision on the matter is not expected until early 2020, setting the curiosity on the outcome of the case high.

Irish DPC updates Guidance on Data Processing’s Legal Bases

17. December 2019

The Irish Data Protection Commission (DPC) has updated their guidance on the legal bases for personal data processing. It focuses on data processing under the European General Data Protection Regulation (GDPR) as well as data processing requirements under the European Law Enforcement Directive.

The main points of the updates to the guidance are to make companies more sensitive of their reasons for processing personal data and choosing the right legal basis, as well as ensure that data subjects may be able to figure out if their data is being processed lawfully.

The guidance focuses on the different legal bases in Art.6 GDPR, namely consent, contracts, legal obligation, vital interests, public task or legitimate interests. The Irish DPC states that controllers do not only have to choose the right legal basis, but they also have to understand the obligations that come with the chosen one, which is why they wanted to go into further detail.

Overall, the guidance is made to aid both controllers and data subjects. It consists of a way to support a better understanding of the terminology, as well as the legal requirements the GDPR sets out for processing personal data.

Berlin commissioner for data protection imposes fine on real estate company

6. November 2019

On October 30th, 2019, the Berlin Commissioner for Data Protection and Freedom of Information issued a fine of around 14.5 million euros against the real estate company Deutsche Wohnen SE for violations of the General Data Protection Regulation (GDPR).

During on-site inspections in June 2017 and March 2019, the supervisory authority determined that the company used an archive system for the storage of personal data of tenants that did not provide for the possibility of removing data that was no longer required. Personal data of tenants were stored without checking whether storage was permissible or even necessary. In individual cases, private data of the tenants concerned could therefore be viewed, even though some of them were years old and no longer served the purpose of their original survey. This involved data on the personal and financial circumstances of tenants, such as salary statements, self-disclosure forms, extracts from employment and training contracts, tax, social security and health insurance data and bank statements.

After the commissioner had made the urgent recommendation to change the archive system in the first test date of 2017, the company was unable to demonstrate either a cleansing of its database nor legal reasons for the continued storage in March 2019, more than one and a half years after the first test date and nine months after the GDPR came into force. Although the enterprise had made preparations for the removal of the found grievances, nevertheless these measures did not lead to a legal state with the storage of personal data. Therefore the imposition of a fine was compelling because of a violation of article 25 Abs. 1 GDPR as well as article 5 GDPR for the period between May 2018 and March 2019.

The starting point for the calculation of fines is, among other things, the previous year’s worldwide sales of the affected companies. According to its annual report for 2018, the annual turnover of Deutsche Wohnen SE exceeded one billion euros. For this reason, the legally prescribed framework for the assessment of fines for the established data protection violation amounted to approximately 28 million euros.

For the concrete determination of the amount of the fine, the commissioner used the legal criteria, taking into account all burdening and relieving aspects. The fact that Deutsche Wohnen SE had deliberately set up the archive structure in question and that the data concerned had been processed in an inadmissible manner over a long period of time had a particularly negative effect. However, the fact that the company had taken initial measures to remedy the illegal situation and had cooperated well with the supervisory authority in formal terms was taken into account as a mitigating factor. Also with regard to the fact that the company was not able to prove any abusive access to the data stored, a fine in the middle range of the prescribed fine framework was appropriate.

In addition to sanctioning this violation, the commissioner imposed further fines of between 6,000 and 17,000 euros on the company for the inadmissible storage of personal data of tenants in 15 specific individual cases.

The decision on the fine has not yet become final. Deutsche Wohnen SE can lodge an appeal against this decision.

 The Netherlands passed new law on the use of passenger data

31. October 2019

In June 2019 the Netherlands adopted a new law concerning the processing and sharing of passenger data by airlines. Since the 18 June 2019, airlines are now required to share passenger data with a newly established passenger information unit  (‘Pi-NL’) for all flights that depart from the Netherlands or arrive in the Netherlands. The passenger data to be passed on include, for example nationality, full name, date of birth, number and type of travel documents used.

The new established specialised unit will be independent with its own statustory task and authorisations and will collect,process and analyse passenger data and share it with the competent authorities such as the police, Public Prosecution and with comparable units in other Member States oft he EU and with Europol, if necessary. It falls under the responsibility of the Minister of Justice and Security. The purpose of such data processing is to prevent, detect, investigate and prosecute terrorist offences and serious criminal offences.

This law implements the European PNR (Passenger Name Record) directive in Dutch law. The aim of the PNR directive is to ensure internal security within the European Union and to protect the life and safety of persons. It will also promote more effective cooperation between EU Member States.

In drafting this law, the Dutch gorvernment weighed the importance of combating terrorism against the privacy interests of passengers.  Therefore the newly introduced law also contains a number of data protection safeguards and guarantees, such as a limitation on the retention period, a processing prohibition on special categories of personal data and strict conditions for the exchange of such data with other states and the requirement that the Pi-NL appoint a data protection officer.

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