Category: European Data Protection

EU Commission announces formal adoption of the EU-U.S. Privacy Shield

13. July 2016

The EU Commission announced yesterday the formal adoption of the EU-U.S. Privacy Shield. Both, the EU Commission Vice-President, Andrus Ansip, and the EU Commissioner Vera Jourová highlighted the positive impact of the Privacy Shield not only for businesses, but especially for EU citizens, whose right to data protection will be enforced and several mechanisms will implemented in order to safeguard their rights.

The main aspects of the final draft of the EU-U.S. Privacy Shield are:

  • U.S. companies handling EU personal data will be subject to stricter obligations. For instance, the American Department of Commerce will review regularly that the participating companies comply in practice with the commitments of the Privacy Shield. In case of incompliance, the company will face not only fines, but will be also removed from the list.
  • The U.S. has ensured that bulk collection of EU citizens’ data will be carried out only if certain conditions are met and it will be as targeted and focused as possible. Also, a redress mechanism will be available for EU citizens to solve this kind of issues.
  • Individual rights will be effectively protected through the implementation of dispute resolution mechanisms, which will be affordable and accessible for EU citizens. In case that the dispute is not resolved, an arbitration mechanism will be also available. If the dispute refers to U.S. national security Authorities, an independent Ombudsperson will handle the issue.
  • The Privacy Shield will be subject to an annual review by the EU Commission and the U.S. Department of Commerce in order to monitor its functioning.

Next steps

The Privacy Shield constitutes an “adequacy decision”. This decision has been notified to the EU Member States by the EU Commission and will enter into force immediately. Additionally, it will also be published on the U.S. Official Journal.

Starting August 1st, the U.S. Department of Commerce will start processing membership requests. This means that companies that wish to certify and become members of the EU-U.S. Privacy Shield will have to review and if appropriate update their privacy programs.

Furthermore, the EU Commission will publish a guidance in order to inform EU citizens about the dispute resolution mechanisms available under the Privacy Shield.

What happens with the GDPR?

The GDPR lays down stricter requirements to carry out international data transfers than those of the Privacy Shield. As the GDPR will enter into force in two years, U.S. companies will have to be compliant also with the requirements of the GDPR.

However, this situation has been already addressed in two directions: on the one hand, the Privacy Shield will be subject to an annual review, as mentioned above; and on the other hand, the Privacy Shield states that its scope of application refers to data transfers and processing of personal data by U.S. companies as far as the processing does not fall under the scope of EU legislation.

NIS Directive has been adopted by the EU Commission

12. July 2016

On the 6th July 2016, the Vice-President of the EU Commission, Andrus Ansip, and Commissioner Günther H. Oettinger announced the approval of the NIS Directive, this is the Directive on Security of Network and Information Systems.

NIS Directive is one of the main legislative proposals in the context of the Cybersecurity Strategy developed by the EU and focuses on the following aspects:

  • The development of a national system to face cybersecurity attacks such as a Computer Security Incident Response (CSIRT) and a competent authority in cybersecurity issues.
  • A strategic cooperation mechanism between Member States and a development of a CSIRT Network in order to share information about risks.
  • To promote a culture of IT-security in all industry sectors, especially those identified as being “operators of essential services”. This also means to adopt adequate incident response plans. The Directive will apply also to digital service providers such as cloud computing, search engines and e-commerce businesses.

The Directive will enter into force in August 2016 and EU Member States will have 21 months to implement it into their national laws.

The EU-U.S. Privacy Shield has been approved

11. July 2016

On the 8th July 2016, the Vice-President of the EU Commission, Andrus Ansip, and the Commissioner Vera Jourová announced in a joint statement that the EU Member States have approved the updated draft of the EU-U.S. Privacy Shield. However, Austria, Bulgaria, Croatia, and Slovenia abstained from voting.

The statement remarks that the Privacy Shield will ensure a high data protection level for EU citizens, because it imposes stronger obligations for U.S. companies. Specially regarding the bulk collection of personal data from EU citizens by American authorities.

The formal adoption of the Privacy Shield is expected this week.

Although the EU-U.S. Privacy Shield has been approved, the legality of the agreement could be challenged, as occurred with the former Safe Harbor Framework.

EU-U.S. Privacy Shield: approval expected within this week

4. July 2016

The EU Commission and American negotiators reached last week an agreement regarding the final draft of the EU-U.S. Privacy Shield. Now, the EU Commission has sent this draft to the Article 31 WP, who is expected to issue an opinion by tomorrow. If so, the EU-U.S. Privacy Shield will be implemented by the end of this week. Also, the final draft has been sent to the EU Parliament. The EU Parliament can issue an opinion, but cannot block its approval.

The Article 31 WP will meet today to review the text. Normally, the committee has two weeks to issue an opinion but the EU Commission expects an approval already this week.

Agreement by EU and U.S. negotiators on final changes on the Privacy Shield

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.

Further developments regarding EU-U.S. data transfers: the “Umbrella-Agreement” has been signed

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.

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.

Is an exam personal data?

11. May 2016

EU data protection legislation has been lately updated in several aspects. Last week, the GDPR was finally published in the Official Journal of the EU, also the Passenger Name Record (PNR) Directive and the Directive related to criminal records held by authorities have been published in the Official Journal of the EU.

In this evolving landscape, new questions related to the application of EU data protection legislation are arising. Recently, the Irish Supreme Court raised a question to the ECJ related to the scope of application of the definition of personal data. A man that took an accounting exam exercised his right to data subject access request regarding this exam on the basis of Irish Data Protection Laws. However, this access request was refused based on the argument that the data he wrote on the accounting exam could not be referred to as “personal data”, as it was not his “own” personal data, but data related to the subject of the exam in question.

According to the EU definition, personal data is “any information relating to an identified or identifiable natural person”. The scope of this definition is essential in order to determine if data protection laws are applicable or not. In this case, the ECJ will have to answer to this question in a preliminary ruling. In a similar case, an applicant for a Dutch residence permit exercised an access request, which had been refused. The refusal was based on a legal opinion. The ECJ stated that a legal opinion refers to a situation and not to personal data. However, counter-arguments may be given in order to support the inclusion of an exam in the definition of personal data, such as the person´s handwriting or the remarks of the examiner that may be related to the person who wrote the exam, etc.

The ECJ will have to decide whether such data is subject to data protection legislation and, therefore, the data subject access request should be accepted.

GDPR published in the Official Journal of the EU

9. May 2016

After the EU Parliament voted the final draft of the GDPR on April 14th and the EU Commission signed it, the GDPR was finally published in the Official Journal of the EU on May 4th. The GDPR will harmonize several aspects of data protection in order to achieve a higher data protection level within the EU.

The Regulation will enter into force 20 days after publication in the Official Journal of the EU but will be directly applicable two years after its entry into force, this is ending May 2018. This means that organizations have two years to implement the provisions of the GDPR and be compliant.

UK Information Commissioner gives opinion on EU-U.S. Privacy Shield

25. April 2016

The UK Information Commissioner, Christopher Graham, issued last week his opinion about the EU-U.S. Privacy Shield. He criticized the reluctance of the U.S. authorities to make amendments on the agreement. On the 13th April, the Article 29WP also called American negotiators for clarification of some aspects of the Privacy Shield such as data transfers, the institution of the ombudsman or the justification for the collection of personal data, etc. Graham also remarked that the ECJ will also ask for clarification regarding these points and invited both American and European authorities to provide the required clarification.

On the other side, Stefan Selig, U.S. undersecretary of commerce for international trade, affirmed that the opinion issued by the EU Data Protection Authorities will be revised carefully. However, he believes that the current draft of the EU-U.S. Privacy Shield achieves a balance of interests for both parties.

Graham also remarks the importance of reaching an agreement regarding international data transfers, so that the English DPA (ICO) can focus on providing support to organizations regarding the implementation of the GDPR that will be effective on the first half of 2018.

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