Category: European Union

EU looking to increase Enforcement Powers over Tech Giants

24. September 2020

In an interview with The Financial Times on Sunday, EU-Commissioner Thierry Breton stated that the European Union is considering plans to increase its enforcement powers regarding tech giants.

This empowerment is supposed to include punitive measures such as forcing tech firms to break off and sell their EU operations if the dominance on the market becomes too large. It is further considered to enable the EU to be able to boot tech companies from the EU single market entirely. Breton stated these measures would of course only be used in extreme circumstances, but did not elaborate on what would qualify as extreme.

“There is a feeling from end-users of these platforms that they are too big to care,” Thierry Breton told The Financial Times. In the interview, he compared tech giants’ market power to the big banks before the financial crisis. “We need better supervision for these big platforms, as we had again in the banking system,” he stated.

In addition, the European Union is considering a rating system, in which companies would be given scores in different categories such as tax compliance, taking action against illegal content, etc. However, Breton said that it is not the intend to make companies liable for their users’ content.

Breton further said that the first drafts of the new law will be ready by the end of the year.

Once the final draft is in place, it will require approval both by the European Parliament as well as the European Council, before it can be enacted.

Privacy Activist Schrems unleashes 101 Complaints

21. September 2020

Lawyer and privacy activist Maximilian Schrems has become known for his legal actions leading to the invalidation of “Safe Harbor” in 2015 and of the “EU-U.S. Privacy Shield” this year (we reported). Following the landmark court decision on the “EU-U.S. Privacy Shield”, Schrems recently announced on the website of his NGO “noyb” (non-of-your-business) that he has filed 101 complaints against 101 European companies in 30 different EU and EEA countries with the responsible Data Protection Authorities. Schrems exercised the right to lodge a complaint with the supervisory authority that every data subject has if he or she considers that the processing of personal data relating to him or her infringes the Regulation, pursuant to Art. 77 GDPR.

The complaints concern the companies’ continued use of Google Analytics and Facebook Connect that transfer personal data about each website visitor (at least IP-address and Cookie data) to Google and Facebook which reside in the United States and fall under U.S. surveillance laws, such as FISA 702. Schrems also published a list of the 101 companies which include Sky Deutschland, the University of Luxembourg and the Cyprus Football Association. With his symbolic action against 101 companies, Schrems wanted to point to the widespread inactivity among many companies that still do not take the data protection rights of individuals seriously despite the recent ruling by the Court of Justice of the European Union.

In response, the European Data Protection Board (“EDPB”) has set up a “task force” to handle complaints against European companies using Google Analytics and Facebook services. The taskforce shall analyse the matter and ensure a close cooperation among the members of the Board which consists of all European supervisory authorities as well as the European Data Protection Supervisor.

EDPB releases new official register of Art. 60 GDPR decisions

29. June 2020

On 25 June 2020, the European Data Protection Board (“EDPB”) released a new register of final decisions by national European Data Protection Authorities (Supervisory Authorities) cooperating with one another pursuant to Art. 60 GDPR. The register provides access to the decisions themselves, summaries of the decisions in English, and information on the identity of the cooperating Lead Supervisory Authority and Concerned Supervisory Authorities.

The GDPR postulates that Supervisory Authorities have to cooperate in potential cases of GDPR violations that include cross-border data processing activities. During this cooperation, the Lead Supervisory Authority will be in charge of preparing the draft decision and involving the Concerned Supervisory Authorities, and will act as the sole interlocutor of the Controller or Processor (“One-Stop-Shop”-Principle), Art. 56 and Art. 60 GDPR.

To date, the new EDPB register contains 110 final decisions. The EDPB states in its announcement that ‘the register will be valuable to data protection practitioners who will gain access to information showcasing how SAs work together to enforce the GDPR in practice.’

Thailand postpones Enforcement of new Personal Data Protection Act

22. June 2020

In response to the European General Data Protection Regulation (“GDPR”) becoming applicable in 2018, Thailand adopted its first-ever Personal Data Protection Act (“PDPA”) into law on 28 May 2019. As it is fashioned after the GDPR, the PDPA is built around principles that vastly align with the GDPR, especially in the areas of data protection principles, legal bases, and data subject rights. Originally, it was determined that the PDPA would start its applicability one year after its adoption, on 27 May 2020.

Now, the Thai Government has approved of a draft decree by the Ministry of Digital Economy and Society (“MDES”) to postpone the enforcement of most sections of the PDPA to 31 May 2021. The MDES explained that the reasons for delay are the current Corona pandemic and its strain on businesses, as well as many businesses not being prepared for PDPA compliance. Notably, Brasil also postponed the enforcement of its new Data Protecion Law (“LGPD”) for similar reasons (we reported).

The only sections of the PDPA that will be enforced as originally planned include the appointment of the Personal Data Protection Committee members and the establishment of the Office of the Personal Data Protection Committee. Whilst the delay allows companys more time to become PDPA compliant, the lack of enforcement regarding data subject rights in the meantime are a big concern of critics, especially in light of the recent adoption of Thailand’s controversial new cybersecurity law.

Hungary Update: EDPB publishes Statement on Art. 23 GDPR

17. June 2020

Since March 2020, Hungary has been in a “state of emergency” following the COVID-19 pandemic. The country’s COVID-19 related emergency laws and state of emergency received worldwide criticism from constitutional experts, politicians and civil rights groups, because it allows the Prime Minister to rule by decree during the state of emergency and does not provide a predefined end date. During the state of emergency, Prime Minister Victor Orbán made extensive use of his newly gained powers by passing more than a hundred decrees, including Decree No. 179/2020, which suspended the GDPR data subject rights in Art. 15-22 GDPR with respect to personal data processing for the purpose of preventing, understanding, detecting the coronavirus disease and impeding its further spread (we reported).

In response to this suspension of GDPR rights, the European Data Protection Board (“EDPB”) has recently published a Statement on restrictions on data subject rights pursuant to Art. 23 GDPR, which is the provision that Hungary’s measure was based on. This article allows the member states to restrict, by way of a legislative measure, the scope of the obligations and rights provided for in Articles 12 to 22 and Article 34, when such a restriction respects the essence of the fundamental rights and freedoms and is a necessary and proportionate measure in a democratic society to safeguard, inter alia, important objectives of general public interest of the Union or of a Member State such as public health.

In its Statement, the EDPB points out that any restriction must respect the essence of the right that is being restricted. If the essence of the right is compromised, the restriction must be considered unlawful. Since the data subject’s right of access and the right to rectification are fundamental rights according to Art. 8 para. 2 of the Charter of Fundamental Rights of the European Union, any restriction of those rights must be carefully weighed up by the member states, in order respect the essence of the rights. The EDPB considers that restrictions adopted in the context of a state of emergency suspending or postponing the application of data subject rights, without any clear limitation in time, equate to a de facto blanket suspension and denial of those rights and are not be compatible with the essence of the fundamental rights and freedoms.

The EDPB also recalls that the restrictions under Art. 23 GDPR must be necessary and proportionate. It argues that restrictions that are imposed for a duration not precisely limited in time or which apply retroactively or are subject to undefined conditions, are not foreseeable to data subjects and thus disproportionate.

Furthermore, the EDPB takes the view that in order to safeguard important objectives of general public interest such as public health (Art. 23 para. 1 lit. e GDPR), there must be a clearly established and demonstrated link between the foreseen restrictions and the objective pursued. The mere existence of a pandemic or any other emergency situation alone does not justify a restriction of data subject rights, especially if it is not clearly established, how the restrictions can help dealing with the emergency.

Following the international public backlash, the Parliament of Hungary passed legislation on 16 June 2020 to revoke the emergency laws as soons as the current state of emergency will be terminated by the Government. Hungary’s Government announced in May that it intends to lift the state of emergency on 20 June 2020. After that, the restrictions on the GDPR rights shall be lifted as well, so that data subject may exercise their Art. 15-22 GDPR rights again.

Series on COVID-19 Contact Tracing Apps Part 2: The EDPB Guideline on the Use of Contact Tracing Tools

25. May 2020

Today we are continuing our miniseries on contact tracing apps and data protection with Part 2 of the series: The EDPB Guideline on the Use of Contact Tracing Tools. As mentioned in Part 1 of our miniseries, many Member States of the European Union have started to discuss using modern technologies to combat the spread of the Coronavirus. Now, the European Data Protection Board (“EDPB”) has issued a new guideline on the use of contact tracing tools in order to give European policy makers guidance on Data Protection concerns before implementing these tools.

The Legal Basis for Processing

In its guideline, the EDPB proposes that the most relevant legal basis for the processing of personal data using contact tracing apps will probably be the necessity for the performance of a task in the public interest, i.e. Art. 6 para. 1 lit. e) GDPR. In this context, Art. 6 para. 3 GDPR clarifies that the basis for the processing referred to in Art. 6 para. 1 lit. e) GDPR shall be laid down by Union or Members State law.

Another possible legal basis for processing could be consent pursuant to Art. 6 para. 1 lit. a) GDPR. However, the controller will have to ensure that the strict requirements for consent to be valid are met.

If the contact tracing application is specifically processing sensitive data, like health data, processing could be based on Art. 9 para. 2 lit. i) GDPR for reasons of public interest in the area of public health or on Art. 9 para. 2 lit. h) GDPR for health care purposes. Otherwise, processing may also be based on explicit consent pursuant to Art. 9 para. 2 lit. a) GDPR.

Compliance with General Data Protection Principles

The guideline is a prime example of the EDPB upholding that any data processing technology must comply with the general data protection principles which are stipulated in Art. 5 GDPR. Contact tracing technology will not be an exeption to this general rule. Thus, the guideline contains recommendations on what national governments and health agencies will need to be aware of in order to observe the data protection principles.

Principle of Lawfulness, fairness and transparency, Art. 5 para. 1 lit. a) GDPR: First and foremost, the EDPB points out that the contact tracing technology must ensure compliance with GDPR and Directive 2002/58/EC (the “ePrivacy Directive”). Also, the application’s algorithms must be auditable and should be regularly reviewed by independent experts. The application’s source code should be made publicly available.

Principle of Purpose limitation, Art. 5 para. 1 lit. b) GDPR: The national authorities’ purposes of processing personal data must be specific enough to exclude further processing for purposes unrelated to the management of the COVID-19 health crisis.

Principles of Data minimisation and Data Protection by Design and by Default, Art. 5 para. 1 lit. c) and Art. 25 GDPR:

  • Data processed should be reduced to the strict minimum. The application should not collect unrelated or unnecessary information, which may include civil status, communication identifiers, equipment directory items, messages, call logs, location data, device identifiers, etc.;
  • Contact tracing apps do not require tracking the location of individual users. Instead, proximity data should be used;
  • Appropriate measures should be put in place to prevent re-identification;
  • The collected information should reside on the terminal equipment of the user and only the relevant information should be collected when absolutely necessary.

Principle of Accuracy, Art. 5 para. 1 lit. d) GDPR: The EDPB advises that procedures and processes including respective algorithms implemented by the contact tracing apps should work under the strict supervision of qualified personnel in order to limit the occurrence of any false positives and negatives. Moreover, the applications should include the ability to correct data and subsequent analysis results.

Principle of Storage limitation, Art. 5 para. 1 lit. e) GDPR: With regards to data retention mandates, personal data should be kept only for the duration of the COVID-19 crisis. The EDPB also recommends including, as soon as practicable, the criteria to determine when the application shall be dismantled and which entity shall be responsible and accountable for making that determination.

Principle of Integrity and confidentiality, Art. 5 para. 1 lit. f) GDPR: Contact tracing apps should incorporate appropriate technical and organisational measures to ensure the security of processing. The EDPB places special emphasis on state-of-the-art cryptographic techniques which should be implemented to secure the data stored in servers and applications.

Principle of Accountability, Art. 5 para. 2 GDPR: To ensure accountability, the controller of any contact tracing application should be clearly defined. The EDPB suggests that national health authorities could be the controllers. Because contact tracing technology involves different actors in order to work effectively, their roles and responsibilities must be clearly established from the outset and be explained to the users.

Functional Requirements and Implementation

The EDPB also makes mention of the fact that the implementations for contact tracing apps may follow a centralised or a decentralised approach. Generally, both systems use Bluetooth signals to log when smartphone owners are close to each other.  If one owner was confirmed to have contracted COVID-19, an alert can be sent to other owners they may have infected. Under the centralised version, the anonymised data gathered by the app will be uploaded to a remote server where matches are made with other contacts. Under the decentralised version, the data is kept on the mobile device of the user, giving users more control over their data. The EDPB does not give a recommendation for using either approach. Instead, national authorities may consider both concepts and carefully weigh up the respective effects on privacy and the possible impacts on individuals rights.

Before implementing contact tracing apps, the EDPB also suggests that a Data Protection Impact Assessment (DPIA) must be carried out as the processing is considered likely high risk (health data, anticipated large-scale adoption, systematic monitoring, use of new technological solution). Furthermore, they strongly recommend the publication of DPIAs to ensure transparency.

Lastly, the EDPB proposes that the use of contact tracing applications should be voluntary and reiterates that it should not rely on tracing individual movements but rather on proximity information regarding users.

Outlook

The EDPB acknowledges that the systematic and large scale monitoring of contacts between natural persons is a grave intrusion into their privacy. Therefore, Data Protection is indispensable to build trust, create the conditions for social acceptability of any solution, and thereby guarantee the effectiveness of these measures. It further underlines that public authorities should not have to choose between an efficient response to the current pandemic and the protection of fundamental rights, but that both can be achieved at the same time.

In the third part of the series regarding COVID-19 contact tracing apps, we will take a closer look into the privacy issues that countries are facing when implementing contact tracing technologies.

Hungarian Government suspends GDPR rights for COVID-19 related Data Processing

12. May 2020

In the face of the Corona pandemic, Hungary is currently in an indefinite “state of emergency”. Originally, Prime Minister Victor Orbán decreed the state of emergency on 11 March 2020 lasting for a period of 15 days. However, on 30 March 2020, the Hungarian Parliament passed emergency legislation (Bill on Protection against Coronavirus or Bill T/9790) extending the state of emergency until terminated by the Prime Minister and allowing the Prime Minister to rule by decree during the state of emergency. The Bill was passed thanks to the two-thirds majority of Orbán’s Fidesz Party in the Hungarian Parliament.

On 4 May 2020, Prime Minister Orbán issued Decree No. 179/2020 which contains several provisions affecting Data Protection in Hungary extensively for the time of the state of emergency.

Most importantly, the decree suspends the individual data subject’s rights pursuant to Art. 15 to 22 of the European GDPR when processing personal data for the purpose of preventing, recognising, and stopping the spread of the Coronavirus. It also stipulates that the one month time limit for Controllers to provide the necessary information (Art. 12 para. 3 GDPR) will only begin after the termination of the state of emergency for any Coronavirus related data subject requests. Furthermore, the data collection information requirements for Controllers pursuant to Art. 13 and 14 GDPR will be satisfied by publishing an electronic privacy notice providing the purpose and the legal basis of data processing which the data subjects may take notice of.

The emergency decree received much criticism from various European Data Protection authorities and civil rights groups. The head of the European Data Protection Board (“EDPB”) Andrea Jelinek stated that she is “personally very worried” about the developments, and described the Hungarian government’s decision as “unnecessary [and] detrimental”. In its most recent plenary session, the EDPB also specifically discussed Hungary’s emergency measures in light of European Data Protection Law.

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.

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.

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