Category: European Data Protection

Opinion of the Article 29WP on the EU-U.S. Privacy Shield “leaked” by the German DPAs

12. April 2016

After the details of the draft of the new adequacy decision to carry out international data transfers between the EU and the U.S. have been released (“EU-U.S. Privacy Shield”), the Article 29 WP is expected to express its opinion on the proposed text within this week.

On the 6th and 7th April the German DPAs meet to discuss current privacy topics, among others about the EU-U.S. Privacy Shield. A link to the resolution related to this topic was uploaded in the webpages of each federal DPA. The link to the resolution was deleted afterwards. However, a permanent link to the resolution (in German) can be found under https://www.delegedata.de/wp-content/uploads/2016/04/Beschluss_Mandat_Privacy_Shield.pdf.

The resolution of the German DPAs seems to refer to the current draft of the Article 29WP on the EU-U.S. Privacy Shield:

“Therefore, the WP29 is not yet in a position to confirm that the current draft adequacy decision does, indeed, ensure a level of protection that is essentially equivalent to that in the EU.”

This paragraph suggests that the European DPAs may not release a positive opinion on the EU-U.S. Privacy Shield.

Although the opinion of the Article 29 WP is not binding for the EU Commission, the Article 29 WP may initiate legal actions through the local DPAs against the adequacy decision if it is approved, as stated in paragraph 4 of the above mentioned resolution.

European Council accelerates the process for adopting the GDPR

7. April 2016

The Council of the European Union announced that the process for adopting the GDPR will be accelerated. This is due to the the fact that the General Secretariat of the Council sent a Note requesting the Permanent Representatives Committee to use the so called “written procedure” in order to adopt the Council’s position. Initially a vote on the Council’s position was planned on 21st April 2016, when the next Justice and Home Affairs Council takes place. However, the Council has decided to accelerate the process for adoption by using the “written procedure”. Proceding this way is an exemption as it does not include public deliberation.

The mentioned Note states that the “need to send the Council’s position at first reading to the European Parliament during its April I plenary, will only be possible to adopt the Council’s position at first reading within this very short deadline via the written procedure, which would be launched on Thursday 7th April 2016 and would end on Friday 8th April 2016, at midday. Delegations’ attention is drawn to the exceptionally short duration of this written procedure.”

When looking on the next steps it is to say that once the Council’s position is adopted,  it will then be sent to the European Parliament. The European Parliament will go on by acknowledging the receipt during the next plenary session taking place on 11-13 April 2016. Afterwards, the Parliament’s Civil Liberties Committee will vote on a recommendation to Parliament regarding the Council’s position. These recommendation will then be used as a foundation for the Parliament’s adoption of the GDPR in one of the following plenary meetings.

EU Council releases statement at first reading on the upcoming GDPR

23. March 2016

On March 17th, the EU Council issued its position on the draft of the GDPR.

The statement of the EU Council identifies and analyzes the following key aspects of the GDPR:

  • Material, formal and territorial scope of application of the GDPR in order to achieve a harmonization at a EU level.
  • Principles of the data processing, especially “pseudonymization” and “data minimization”
  • Lawfulness of the processing based on the consent of the data subject, a contract, a legal obligation, etc.
  • Empowerment of data subjects through the enhancement of their rights as data subjects to access the information that is held about them, the right to be forgotten, right to transparency on the processing, right to object to the processing of their personal data, etc.
  • Controller and processor´s accountability for the processing operations. Additionally their obligation to appoint a Data Protection Officer (DPO) in order to ensure compliance with the GDPR.
  • Transfers of personal data to third countries on the basis of adequacy decisions or other mechanisms that ensure an adequate level of data protection in third countries.
  • The EU DPAs supervisory role on the application of the GDPR on each Member State.
  • Remedies, liabilities and penalties as compensation mechanism in case of data breaches or damages caused to the data subjects.
  • Specific data processing situations, for example regarding employee´s personal data

The EU Council remarks that the GDPR reflects the compromise reached between the EU Parliament and the EU Council. Furthermore, it invites the EU Parliament to formally approve the position of the EU Council.

EU-U.S. Privacy Shield expected to be effective in June 2016

16. March 2016

On the 14th March, the Digital Commissioner Günther Oettinger spoke out on the EU-U.S. Privacy Shield at the CeBIT fair (Center for Office Automation, Information Technology and Telecommunication), which will take place in Hannover (Germany) from the 14th until the 18th March.

Oettinger stated that the EU DPAs will evaluate the EU-U.S. Privacy Shield in the upcoming weeks, so that the new Framework can be effective in June 2016. He also remarked that without a legal regulation for international transfers of personal data, “the trust in cloud services will be low”.

The EU DPAs are expected to meet on the 12th-13th April in order to issue their opinion on the EU-U.S. Privacy Shield. However, this opinion will not be binding.

General overview of the EU-U.S. Privacy Shield

11. March 2016

After the details of the EU-U.S. Privacy Shield were released on February 29th, several institutions will examine its legal implications and validity in order to determine if the new Framework complies with the European Standards on Data Protection. One of these institutions is the Article 29 WP, which will reveal its opinion on the EU-U.S. Privacy Shield by the end of April.

Eduardo Ustaran, an expert in international Privacy and Data Protection, has analyzed the positive impact that the EU-U.S. Privacy Shield may have for the future development of global privacy:

  • This Framework may widespread the European Data Protection culture at an international level because multinationals will globally adopt this model, in order to comply with the European Standards.
  • Additionally, the U.S. government is adapting its legislation to the Data Protection requirements established by the EU Legislation in this field. For example, the U.S. Judicial Redress Act was approved on February 2016 in line with the new conflict resolution system proposed in the Privacy Shield. This way, EU Citizens will have the possibility to raise complaints to U.S. Authorities when their rights to Privacy and Data Protection have been violated by an organization.
  • Also the judiciary will play an important role as ultimate institution that mediates between the citizens and the state.
  • As mentioned above, the conflict resolution system proposed in the Privacy Shield includes the participation of several institutions at different levels, which provides the individuals many possibilities to exercise their rights as data subjects. Therefore, individuals will be able, for example, to raise a complaint towards the organization or to raise a complaint at the local DPA.
  • The Framework may foster the communication and collaboration between American and European Institutions. For instance, it is foreseen that an annual revision of the Framework takes place.

Fact Sheet of the European Commission about the EU-U.S. Privacy Shield

1. March 2016

On the 29th February 2016, the European Commission released a fact sheet about the Frequently Asked Questions related to the EU-U.S. Privacy Shield. The EU-U.S Privacy Shield aims at regulating international data transfers between the EU (including EEA countries Norway, Lichtenstein and Iceland) and the U.S. after the Safe Harbor Decision was declared invalid by the ECJ on October 2015.

The EU-U.S Privacy Shield is a new adequacy decision, under which the U.S. companies that comply with the described data protection principles and abide the obligations described in the framework, will be considered as ensuring an adequate level of data protection.

In contrast to the former Safe Harbor Decision, the EU-U.S. Privacy Shield imposes stronger obligations on companies related to monitoring and enforcement and prevents generalized access to EU personal data from U.S. public Authorities.

Under the Privacy Shield, U.S. companies will have to self-certify that they meet the requirements described in the Framework. The U.S. Department of Commerce will actively verify that the certifying company actually meets the requirements to certify, for example by reviewing the company´s privacy policy.

A key aspect of the Privacy Shield is the possibility for EU data subject to obtain redress in the US in case that their personal data is misused by commercial companies. The possibility to redress involves the following alternatives for the data subject:

  • to lodge a complaint with the company itself, or
  • to complaint towards their local DPA, or
  • to use the Alternative Dispute Resolution (ADR) mechanisms, or
  • through arbitration by having recourse to the Privacy Shield Panel, if the case is not resolved by any of the abovementioned alternatives.

The possibility to redress with regard to national security will be ensured by the institution of the Ombudsman.

All these aspects of the new EU-U.S. Privacy Shield have been reflected in the Judicial Redress Act, signed on February, 24th. This Act gives EU citizens the possibility to address privacy issues to U.S. Courts in relation to personal data transfers for law enforcement purposes. This Act aims at providing EU citizens with the same rights as U.S. citizens.

Also, the so called EU-U.S. “Umbrella-Agreement” covers relevant aspects of data protection regarding EU-U.S. law enforcement cooperation for the purposes of crime and terrorism prevention. This agreement is not a legal basis for data transfers itself, but it will provide safeguards for data transfers made under other existing agreements.

The EU – U.S. Privacy Shield: next steps

19. February 2016

The EU Commission and the U.S. Government agreed recently on the EU- U.S. privacy Shield as a possible mechanism to carry out international data transfers on a valid basis and providing an adequate level of data protection. The agreement shall be adopted by a decision.

The process until both, the proposed agreement and the corresponding decision, are adopted is complex and requires the opinion of several EU institutions

  • The EU Commission should make the proposal for the decision of adopting the agreement. The decision is expected by thy end of February.
  • The WP29, made up of the DPAs from the EU Member States and the European Data Protection Supervisor (EDPS) will have to give its opinion on the proposed agreement. This opinion will not be binding for the EU Commission.
  • Also the Article 31 Committee, established pursuant to art. 31 of the EU Data Protection Directive, will we asked to give an opinion.
  • Finally, the College of the EU Commission will decide about the adoption of the decision.

Additionally, also the ECJ will be requested to examine the proposal in order to determine if it provides an adequate level of protection of the fundamental rights of EU citizens. Also, the DPAs from the Member States may refer to the ECJ for clarification about the agreement.

WP29 – Statement on 2016 Action Plan for the GDPR

16. February 2016

The WP29 has recently published a statement with regards to the action plan in order to implement the EU GDPR (General Data Protection Regulation). The 2016 Action Plan is based on the following four priorities, which are relevant for the tasks of the WP29 and their subgroups.

1. Building up the EDPB (European Data Protection Board) structure and its administration

The main task will be developing IT systems. The European Data Protection Supervisor and the WP29 will furthermore cooperate to set up human resources, a budget and future procedures of the EDPB.

2. Setting up the One-Stop-Shop and the consistency mechanism

In order to prepare the One-Stop-Shop several measures will be necessary, e. g. a lead DPO will have to be designated and the EDPB consistency mechanisms need to be developed.

3. Publishing guidelines for data controllers and processors

The WP29 will publish different guidelines to assist data controllers and data processors in order to fulfil their duties according to the GDPR, such as the new right to portability, “Data Protection Impact Assessment”, and the announcement of a DPO.

4. Communication around the EDPB and the GDPR

The WP29 intends to create an online communication tool, to reinforce the relationship between the EU institutions and to participate in external events to promote the new governance model.

The subgroups of the WP29 will continue fulfilling their tasks. The International Transfers subgroup for instance will carry on analyzing the judgement of the European Court of Justice concerning e.g. the Schrems case. Furthermore, they will be analyzing the EU-U.S. Privacy Shield and its impact on the international data transfers once it has been released.

The WP29 will examine the 2016 Action Plan regularly in order to complete it in 2017.

 

The French DPA requests Facebook to comply with the French Data Protection Act

12. February 2016

On the 8th February, the French DPA (CNIL) announced that it issued a formal notice in which it gives Facebook Inc. and Facebook Ireland Limited 3 months to comply with the French Data Protection Act.

After Facebook informed about changes in its privacy policy at the beginning of 2015, a group formed by the French, the Belgian, the Dutch, the Spanish and the DPA of the German Federal State of Hamburg carried out online and on site audits in order to find out if the updated privacy policy is compliant with the respective data protection legislations.

These audits revealed several incompliances with the French Data Protection Act regarding Facebook´s data processing activities:

  • Facebook collects data of internet users that do not have a Facebook account by using cookies when these users visit a public Facebook page, such as public events or the page of a friend. As a result, the cookie provides Facebook with information about third-party websites with Facebook plug-in buttons, such as “like” button, that are visited by the user.
  • Sensitive data such as religious beliefs or sexual orientation are also processed by Facebook without prior explicit consent of the account holders.
  • Users are not informed in the sign up page about their rights as data subjects and the processing of their personal data.
  • Cookies are also set up in the Facebook website without informing users properly and obtaining their consent.
  • The company does not provide its users with tools to opt-out targeted advertising.
  • Data transfers to U.S. take place on the basis of the Safe Harbor Decision, although it was declared invalid by the ECJ in October 2015.

According to CNIL, this formal notice is not a sanction. However, if Facebook fails to rectify these incompliances within 3 months, the matter will be referred to the CNIL´s Select Committee in order to impose the corresponding sanction.

These findings are also being analyzed by the Belgian, the Dutch, the Spanish and the the DPA of the German Federal State of Hamburg within a cooperation framework in order to act accordingly.

Statement of the U.S. Department of Commerce on the „EU – U.S. Privacy Shield“

5. February 2016

Not only European negotiators and institutions have given their opinion on the EU – U.S. Privacy Shield, also the U.S. Department of Commerce and the FTC Commissioner, Julie Brill, have made a public statement on the on the advantages of the implementation of the Privacy Shield.

On the 2nd February, the U.S. Department of Commerce stated that the EU – U.S. Privacy Shield improves, on the one hand, the commercial oversight and enhances privacy protections and, on the other hand, it demonstrates the U.S. commitment to limitations on national security. The statement of the Department of Commerce remarks the cooperation between the FTC and EU Data protection Authorities and its commitment to review the Agreement on an annual basis. Also, it ensures that the U.S. Intelligence Community has described in writing the constitutional, statutory and policy safeguards applied to its operations.

The FTC offered a live webcast on the 4th February in which the EU – U.S. Privacy Shield was explained by FTC Commissioner Julie Brill. During the webcast the main aspects of the EU – U.S. privacy Shield were explained. Julie Brill remarked the commercial relevance of this agreement and the acknowledgement by U.S Authorities that the rights of the individuals and national security should be balanced.

 

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