Category: GDPR

German online shop receives fine of 10.4 mio. Euro for unlawful video surveillance

13. January 2021

The State Commissioner for Data Protection of Niedersachsen (“LfD Niedersachsen) has imposed a fine of 10.4 mio. Euro on notebooksbilliger.de AG, a German online shop for notebooks.

According to the press release of the LfD Niedersachsen, dated 08.01.2021, notebooksbilliger.de had been video-monitoring its employees for at least two years, including  workplaces, sales rooms, warehouses and common areas, without a legal basis. Customers were also affected by the video surveillance, as some cameras were directed at seats in the sales area of the stationary stores.

Notebooksbilliger.de claimed that the cameras were intended to prevent and solve crimes and offences as well as track the flow of goods in the warehouses. In the opinion of the LfD Niedersachsen, a company must consider milder measures to prevent thefts such as random bag checks of the employees when leaving the premises. Moreover, video surveillance is only considered lawful, if there is reasonable suspicion against specific persons and only for a limited period of time. This was not the case at notebooksbilliger as the authority investigated. Additionally, the recordings of the video surveillance were stored for 60 days in many cases, which was significantly longer than necessary.

In the meantime, notebooksbilliger.de had set up the video surveillance lawfully and had proven that to the LfD Niedersachsen.

The fine is not yet legally binding. The company has appealed the fine and published a statement in this regard on its homepage. Notebooksbilliger.de considers the amount of the fine to be disproportionate to the financial strength of the company and defends itself against the statement that it systematically monitored the performance and behavior of its employees. According to the statement, the video system was at no time designed to monitor the behavior of employees or their performance. Futhermore, despite several invitations by notebooksbilliger.de, no one of the authority had spoken to employees in the company’s warehouses or dispatch centers.

EU-UK Trade Deal in light of Data Protection

4. January 2021

Almost fit to be called a Christmas miracle, the European Union (EU) and the United Kingdom (UK) came to an agreement on December 24th, 2020. The Trade Agreement, called in full length “EU-UK Trade and Cooperation Agreement“, is set out to define new rules from the date of the UK Exit from the EU, January 1st, 2021.

President of the European Commission, Ursula von der Leyen, claimed it was a deal worth fighting for, “because we now have a fair and balanced agreement with the UK, which will protect our European interests, ensure fair competition, and provide much needed predictability for our fishing communities. Finally, we can leave Brexit behind us and look to the future. Europe is now moving on.

In light of Data Protection however, the new Trade Deal has not given much certainty of what is to come next.

Both sides are aware that an adequacy decision by the EU Commission is very important with regard to data protection and cross-border data flows. Accordingly, the EU has agreed to allow a period of four months, extendable by a further two months, during which data can be transferred between EU Member States and the UK without additional safeguards. This period was granted to give the Commission enough time to make an adequacy decision. Accordingly, data transfers can continue as before until possibly mid-2021. However, this arrangement is only valid if the UK does not change its data protection laws in the meantime.

With regard to direct marketing, the situation has not changed either: for individuals, active consent must be given unless there was a prior contractual relationship and the advertising relates to similar products as the prior contract. Furthermore, the advertising must also be precisely recognisable as such, and the possibility of revoking consent must be given in every advertising mail.

However, much else has yet to be clarified. Questions such as the competence of the UK Data Protection Authority, the Information Commissioner’s Office (ICO), as well as the fate of its ongoing investigations, have not yet been answered. As of now, companies with their original EU Headquarters in the UK will have to designate a new Lead Supervisory Authority (Art. 56 GDPR) for their business in the EU.

The upcoming months will determine if questions with high relevance to businesses’ day to day practice will be able to be answered reassuringly.

Swedish court confirms Google’s violations of the GDPR

16. December 2020

The Administrative Court of Stockholm announced on November 23rd, 2020, that it had rejected Google LLC’s appeal against the decision of the Swedish Data Protection Authority (Datainspektionen) determining Google’s violations of the GDPR. Google as a search engine operator had not fulfilled its obligations regarding the right to be forgotten (RTBF). However, the court reduced the fine from a total of SEK 75 million (approx. € 7,344,000) to SEK 52 million (approx. € 5,091,000).

Background to the case was the Swedish DPA’s audit in 2017 concerning Google’s handling of requests on delisting, which means removal of certain results from a search engine. The DPA concluded the inspection by ordering Google to delist certain individuals’ names due to inaccuracy, irrelevance and superfluous information. In 2018 the DPA initiated a follow-up audit because of indications that Google had not fully complied with the previously issued order. It resulted in issuing an administrative fine of SEK 75 million in March 2020.

The DPA raised attention to the fact that the GDPR increases the obligations of data controllers and data processors as well as strengthens the rights of individuals, which include the right to have their search result delisted. Though, Google has not been fully complying with its obligations, as it has not properly removed two of the search result listings that the DPA had ordered to delete. In one case Google has done a too narrow interpretation of what web addresses to remove, in the other case Google has failed to remove it without undue delay.

Moreover, the DPA criticized Google’s procedure of managing delisting requests and found it to be undermining data subjects’ rights. Following the removal of a search result listing, Google notifies the website to which the link is directed. The delisting request form, directed to the data subject raising the request, states that information on the removed web addresses can be provided to the webmaster. This information has to be seen as misleading since the data subject is made to understand that its consent to the notification is required in order to process the request. Therefore, such practice might result in individuals refraining from exercising their right to request delisting, which violates Art. 5 (1) lit. a) GDPR. What’s more, in the opinion of the DPA the delisting notifications to the webmasters are not covered by legal obligations according to Art. 6 (1) lit. c), 17 (2) GDPR, nor legitimate interests pursuant to Art. 6 (1) lit. f) GDPR. Also, Google’s routine of regularly sending information to webmasters constitutes processing of personal data being incompatible with the purpose for which the data was originally collected. This practice infringes Art. 5 (1) lit. b), 6 (4) GDPR.

Google appealed the decision of the DPA. Though, the Swedish Administrative Court of Stockholm reaffirmed the DPA’s opinion and confirmed Google’s violations of the GDPR.

The court stated that the process concerning delisting requests must facilitate for the individual to exercise its rights. That means, any process that restricts the individuals’ rights may violate Art. 15 through 22 GDPR. The court also specified why the personal data had been processed beyond their original purpose. Since the notifications are only sent after Google has removed a search result, the purpose of the processing has already expired when the notification is sent. Thus, the notification cannot be considered effective in achieving the purpose specified by Google.

Google shall now delist specific search results and cease to inform webmasters of requests. Also, Google must adapt its data subject rights procedure within eight weeks after the court’s judgment has gained legal force.

CNIL fines Google and Amazon

10. December 2020

The French Data Protection Authority Commission Nationale de l’Informatique et des Libertès – “CNIL” – announced that it has fined the big tech companies Google and Amazon due to violations of the GDPR and the French Data Protection Act.

Regarding Google CNIL announced financial penalties of an combined record breaking amount of € 100 million. € 60 million are against Google LLC, the US-based mother company, and € 40 million against Google Ireland Limited, the Irish daughter company. According to the statement of CNIL the fines are based on violations regarding the Cookie requirements on the website google.fr. Due to an online investigation, conducted on March 16th, 2020, CNIL considers it as proven that Google “placed advertising cookies on the computers of users of the search engine google.fr, without obtaining prior consent and without providing adequate information”.

Besides the findings on Cookies, CNIL also critizes a lack of information on the processed personal data and a partial failure of the opposition mechanism.

The high amount of the financial penalties is justified with the seriousness of the violation, the high amount of concerned data subjects and the significant profits of the companies arising of the advertisements.

CNIL also considers the fact, that this procedure is no longer in place since an update in September 2020, because the newly implemented banner does not allow to understand the purposes for which the cookies are used and does not let the data subject know that they can refuse the coolies.

This is already the second, financial penalty CNIL imposes against Google.

Also for violations in connection with cookies CNIL fines Amazon Europe Core a financial penalty of € 35 million. The accusation is the same as with Google and based on several investigations conducted between December 12th, 2019 and May 19th, 2020. CNIL found out, that when a user visited the website, cookies were automatically placed on his or her computer, without any action required on the users part. Several of these cookies were used for advertising purposes. Also a lack of information has been conducted.

The high amount of the financial penalties is in all cases justified with the seriousness of the violation, the high amount of concerned data subjects and the significant profits of the companies arising of the advertisements.

Belgian DPA planning to suspend websites that infringe GDPR

8. December 2020

The Belgian Data Protection Authority (DPA) signed a Cooperation Agreement on November 26, 2020, with DNS Belgium, the organization behind the management of the “.be” country-code domain name. The background is to allow DNS Belgium to suspend “.be” websites that are infringing the GDPR. The Agreement builds up a two-tier cooperation system, which aims at identifying infringements and suspending the websites if no action is taken.

The first step is a cooperative investigation, for which DNS Belgium has to support the Belgian DPA by providing all information necessary for the investigation.

The second step is the “Notice and Action” procedure, during which, if the Belgian DPA’s Investigation Service considers a data processing activity conducted via a website with a “.be” domain name to infringe one of the data protection principles under the GDPR, and the responsible data controller or data processor does not comply with the DPA’s order to suspend, limit, freeze or end the data processing activity, the Investigation Service is authorized to send a “Notice and Action” notification to DNS Belgium. Once DNS Belgium receives the “Notice and Action” notification, they will proceed to inform the website owner about the infringement and re-direct the relevant domain name to a warning page of the Belgian DPA.

The website owner can take remedial measures within 14 days to remedy the infringement, upon which he can indicate it to the Belgian DPA. If the Belgian DPA does not contest the measures taken, the relevant domain name will be restored. However, if the infringement is not remediated during the 14-day period, the website will continuously to be re-directed to the Belgian DPA’s warning page for a period of six months. After this time the website will be cancelled and placed in quarantine for 40 days before becoming available for registration once again.

Due to the heavy penalty in cases of a controller not taking any action to remedy the infringement, this action by the Belgian DPA is only possible in cases of infringements that cause very serious harm and are committed by natural or legal persons who deliberately infringe the law, or continue a data processing activity despite a prior order by the Investigation Service of the Belgian DPA to suspend, limit, freeze or end the processing activity.

It is to note that the Inspector General of the Belgian DPA can provide extra time to a website owner to comply with the relevant data protection requirements at the Inspector General’s discretion. However, this will depend on a case by case basis and on the cooperation of the website owner.

Admonition for revealing a list of people quarantined in Poland

27. November 2020

The President of the Personal Data Protection Office in Poland (UODO) imposed an admonition on a company dealing with waste management liable for a data breach and ordered to notify the concerned data subjects. The admonition is based on a violation of personal data pertaining to data subjects under medical quarantine. The city name, street name, building/flat number and the fact of remaining under quarantine of the affected data subjects have been provided by the company to unauthorized recipients. The various recipients were required to verify whether, in a given period, waste was to be collected from places determined in the above-mentioned list.

The incident already happened in April 2020. Back then, a list of data subjects was made public, containing information on who had been quarantined by the administrative decision of the District Sanitary-Epidemiological Station (PPIS) in Gniezno as well as information on quarantined data subjects in connection with crossing the country border and on data subjects undergoing home isolation due to a confirmed SARS-CoV-2 infection. After becoming aware of the revelation, the Director of PPIS notified the relevant authorities – the District Prosecutor’s Office and the President of UODO – about the incident.

PPIS informed them that it had carried out explanatory activities showing that the source of disclosure of these data was not PPIS. These data were provided to the District Police Headquarters, the Head of the Polish Post Office, Social Welfare Centres and the Headquarters of the State Fire Service. Considering the fact that these data had been processed by various parties involved, it was necessary to establish in which of them the breach may have occurred.

UODO took steps to clarify the situation. In the course of the proceedings, it requested information from a company dealing with waste management being one of the recipients of the personal data. The company, acting as the data controller, had to explain whether, when establishing the procedures related to the processing of personal data, it had carried out an assessment of the impact of the envisaged processing operations on the protection of personal data according to Art. 35 GDPR. The assessment persists in an analysis of the distribution method in electronic and paper form in terms of risks related to the loss of confidentiality. Furthermore, the data controller had to inform UODO about the result of this analysis.

The data controller stated that it had conducted an analysis considering the circumstances related to non-compliance with the procedures in force by data processors and circumstances related to theft or removal of data. Moreover, the data controller expressed the view that the list, received from the District Police Headquarters, only included administrative (police) addresses and did not contain names, surnames and other data allowing the identification of a natural person. Thus, the GDPR would not apply, because the data has to be seen as anonymized. However, from the list also emerged the fact that residents of these buildings/flats were placed in quarantine, which made it possible to identify them. It came out that the confidentiality of the processed data had been violated in the course of the performance of employee duties of the data processor, who had left the printed list on the desk without proper supervision. During this time, another employee had recorded the list in the form of a photo and had shared it with another person.

Following the review of the entirety of the collected material in this case, UODO considered that the information regarding the city name, street name, building/flat number and placing a data subject in medical quarantine, constitute personal data within the meaning of Art. 4 (1) GDPR, while the last comprises a special category of personal data concerning health according to Art. 9 (1) GDPR. Based on the above, it is possible to identify the data subjects, and therefore the data controller is bound to the obligations arising from the GDPR.

In the opinion of UODO, the protective measures indicated in the risk analysis are general formulations, which do not refer to specific activities undertaken by authorized employees. The measures are insufficient and inadequate to the risks of processing special categories of data. In addition, the data controller should have considered factors, such as recklessness and carelessness of employees and a lack of due diligence.

According to Art. 33 (1) GDPR, the data controller shall without undue delay and, where feasible, not later than 72 hours after having become aware of the data breach, notify it to the competent supervisory authority. Moreover, in a situation of high risk to the rights and freedoms of the data subjects, resulting from the data breach (which undoubtedly arose from the disclosure), the data controller is obliged to inform the data subject without undue delay in accordance with Art. 34 (1) GDPR. Despite this, the company did not report the infringement, neither to the President of UODO nor to the concerned data subjects.

EDPB extends consultation period for suplementary measures drafts in 42nd Plenary Session

26. November 2020

On November 19th, the European Data Protection Board (EDPB) met for its 42nd plenary session. During the session, the EDPB presented two new Standard Contractual Clauses (SCCs) drafts, which have been developed after the Schrems II decision to give more legal certainty to data transfers, as well as extended the public consultation period on transfer mechanisms until the 21st of December 2020.

The drafts presented by the EDPB include one set of SCCs for contracts between controllers and processors, and another one for data transfers outside the EU.

The first are completely new, and have been developed by the Commission in accordance with Art. 28 (7) GDPR and Art. 29 (7) of Regulation 2018/1725. This set of SCCs is intended for EU-wide application, and the Commission drafted them with the aim to ensure full harmonisation and legal certainty across the EU for contracts between controllers and processors.

The second set of drafts is a new take on the SCCs as transfer mechanisms according to Art. 46 (2) (c) GDPR. These SCCs will replace the existing SCCs for international transfers that were adopted on the basis of Directive 95/46 and needed to be updated to bring them in line with GDPR requirements, as well as with the CJEU’s ‘Schrems II’ ruling, and to better reflect the widespread use of new and more complex processing operations often involving multiple data importers and exporters.

The Commission requested a joint opinion from the EDPB and the EDPS on the implementation on both sets of SCCs.

During the plenary, the Members of the Board also decided to extend the deadline for the public consultation on the recommendations on measures that supplement transfer tools to ensure compliance with EU level of protection of personal data from, originally, 30th November 2020 until 21st December 2020.

The EDPB further adopted a statement on the future ePrivacy Regulation and the future role of supervisory authorities and the EDPB in this context during the plenary. The EDPB underlines that many of the provisions of the future ePrivacy Regulation relate to the processing of personal data and that many provisions of the GDPR and the ePrivacy Regulation are closely intertwined. The most efficient way to have consistent interpretation and enforcement of both sets of rules would therefore be fulfilled if the enforcement of those parts of the ePrivacy Regulation and the GDPR would be entrusted to the same authority. The EDPB further underlined the necessity to adopt the new Regulation as soon as possible.

Microsoft reacts on EDPB’s data transfer recommendations

24. November 2020

Microsoft (“MS”) is among the first companies to react to the European Data Protection Board’s data transfer recommendations (please see our article), as the tech giant announced in a blog post on November 19th. MS calls these additional safeguards “Defending Your Data” and will immediately start implementing them in contracts with public sector and enterprise customers.

In light of the Schrems II ruling by the Court of Justice of the European Union (“CJEU”) on June 16th, the EDPB issued recommendations on how to transfer data into non-EEA countries in accordance with the GDPR on November 17th (please see our article). The recommendations lay out a six-step plan on how to assess whether a data transfer is up to GDPR standards or not. These steps include mapping all data transfer, assessing a third countries legislation, assessing the tool used for transferring data and adding supplementary measures to that tool. Among the latter is a list of technical, organizational, and contractual measures to be implemented to ensure the effectiveness of the tool.

Julie Brill, Corporate Vice President for Global Privacy and Regulatory Affairs and Chief Privacy Officer at Microsoft, issued the statement in which she declares MS to be the first company responding to the EDPB’s guidance. These safeguards include an obligation for MS to challenge all government requests for public sector or enterprise customer data, where it has a lawful basis for doing so; to try and redirect data requests; and to notify the customer promptly if legally allowed, about any data request by an authority, concerning that customer. This was one of the main ETDB recommendations and also included in a draft for new Standard Contractual Clauses published by the European Commission on November 12th. MS announces to monetary compensate customers, whose personal data has to be disclosed in response to government requests.  These changes are additions to the SCC’s MS is using ever since Schrems II. Which include (as MS states) data encrypted to a high standard during transition and storage, transparency regarding government access requests to data (“U.S. National Security Orders Report” dating back to 2011; “Law Enforcement Requests Report“) .

Recently European authorities have been criticizing MS and especially its Microsoft 365 (“MS 365”) (formerly Office 365) tools for not being GDPR compliant. In July 2019 the Ministry of Justice in the Netherlands issued a Data Protection Impact Assessment (DPIA), warning authorities not to use Office 365 ProPlus, Windows 10 Enterprise, as well as Office Online and Mobile, since they do not comply with GDPR standards. The European Data Protection Supervisor issued a warning in July 2020 stating that the use of MS 365 by EU authorities and contracts between EU institutions and MS do not comply with the GDPR. Also, the German Data Security Congress (“GDSC”) issued a statement in October, in which it declared MS 365 as not being compliant with the GDPR. The GDSC is a board made up of the regional data security authorities of all 16 german states and the national data security authority. This declaration was reached by a narrow vote of 9 to 8. Some of the 8 regional authorities later even issued a press release explaining why they voted against the declaration. They criticized a missing involvement and hearing of MS during the process, the GDSC’s use of MS’ Online Service Terms and Data Processing Addendum dating back to January 2020 and the declaration for being too undifferentiated.

Some of the German data protection authorities opposing the GDSC’s statement were quick in welcoming the new developments in a joint press release. Although, they stress that the main issues in data transfer from the EU to the U.S. still were not solved. Especially the CJEU main reserves regarding the mass monitoring of data streams by U.S. intelligence agencies (such as the NSA) are hard to prevent and make up for. Still, they announced the GDSC would resume its talks with MS before the end of 2020.

This quick reaction to the EDPB recommendations should bring some ease into the discussion surrounding MS’ GDPR compliance. It will most likely help MS case, especially with the German authorities, and might even lead to a prompt resolution in a conflict regarding tools that are omnipresent at workplaces all over the globe.

EDPB adopts first decision under Art. 65 GDPR

20. November 2020

During its 41st plenary session, the European Data Protection Board (EDPB) adopted by a two-thirds majority of its members its first dispute resolution decision under Art. 65 GDPR regarding Twitter International Company. The binding decision aims to resolve a dispute arisen from a draft decision by the Irish supervisory authority, being the lead supervisory authority in that case, and subsequent relevant and reasoned objections raised by several authorities concerned.

The Irish supervisory authority prepared a draft decision following an own-initiative investigation into Twitter International Company, after the company had notified the Irish supervisory authority of a personal data breach on January 8th, 2019. According to Art. 60 (3) GDPR, the Irish supervisory authority submitted its draft decision to the other authorities concerned in May 2020, which had the opportunity to express their objections within a period of four weeks afterwards. They referred to, inter alia, violations of the GDPR identified by the lead supervisory authority, the role of Twitter International Company as the sole data controller, and the quantification of the proposed fine.

Due to the fact that the lead supervisory authority rejected the objections and/or considered them not to be “relevant and reasoned”, it submitted the matter to the EDPB pursuant to Art. 60 (4) GDPR, thus initiating the dispute resolution procedure.

Thereupon, the completeness of the file was evaluated, that led to the institution of legal proceedings stated in Art. 65 GDPR on September 8th, 2020. In accordance with Art. 65 (3) GDPR and in conjunction with Art. 11.4 of the EDPB Rules of Procedure, the default time period of one month was extended by a further month on account of the complexity of the subject-matter.

On November 9th, 2020, the EDPB adopted its binding decision and will shortly notify it to the Irish supervisory authority, which, on the other hand, will issue a final decision. It will be addressed to the data controller without undue delay and at the latest by one month after the EDPB has notified its decision. In compliance with the requirements of Art. 65 (6) GDPR, the lead supervisory authority shall inform the EDPB of the date when its final decision is notified respectively to the controller. After that, the EDPB decision will be published on its website.

European Commission issues draft on Standard Contractual Clauses

18. November 2020

A day after the European Data Protection Board (EDPB) issued its recommendations on supplementary measures, on November 12th the European Commission issued a draft on implementing new Standard Contractual Clauses (SCCs) for data transfers to non-EU countries (third countries). The draft is open for feedback until December 10th, 2020, and includes a 12-month transition period during which companies are to implement the new SCCs. These SCCs are supposed to assist controllers and processors in transferring personal data from an EU-country to a third-country, implementing measures that guarantee GDPR-standards and regarding the Court of Justice of the European Union’s (CJEU) “Schrems II” ruling.

The Annex includes modular clauses suitable for four different scenarios of data transfer. These scenarios are: (1) Controller-to-controller-transfer; (2) Controller-to-processor-transfer; (3) Processor-processor-transfer; (4) Processor-to-controller-transfer. Newly implemented in these SCCs are the latter two scenarios. Since the clauses in the Annex are modular, they can be mixed and matched into a contract fitting the situation at hand. Furthermore, more than two parties can adhere to the SCC and the modular approach even allows for additional parties to accede later on.

The potential of government access to personal data is distinctly addressed, since this was a main issue following the “Schrems II” ruling. Potential concerns are met by implementing clauses that address how the data importer must react when laws of the third country impinge on his ability to comply with the contract, especially the SCCs, and how he must react in case of government interference.  Said measures include notifying the data exporter and the data subject of any government interference, such as legally binding requests of access to personal data, and, if possible, sharing further information on these requests on a regular basis, documenting them and challenging them legally. Termination clauses have been added, in case the data importer cannot comply further, e.g. because of changes in the third country’s law.

Further clauses regard matters such as data security, transparency, accuracy and onwards transfer of personal data, which represent issues that have all been tackled in the older SCCs, but are to be updated now.

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