Category: GDPR

A short review of the Polish DPA’s enforcement of the GDPR

10. January 2020

To date, the Polish Data Protection Authority (DPA) have issued 134 decisions and imposed GDPR fines in 5 cases. In 4 cases, the Polish DPA fined private companies and in one case, it fined a public institution.

The fines for the companies ranged from 13.000€ to 645.000€. Reasons for the fines were failures in protecting personal data on websites resulting in the unauthorised access of personal data, inadequate technical and organisational measures, and an insufficient fulfilment of information obligations according to Art. 14 GDPR.

It is also noteworthy that the Polish DPA has imposed a 9.350€ fine on the Mayor of a Polish small town. Under Art. 83 (7) GDPR, each member state of the EU may lay down rules on whether and to what extent administrative fines may be imposed on public authorities. The Polish legislators decided that non-compliant public authorities may receive a GDPR fine of up to 23.475€.

The Mayor received the GDPR fine since he failed to conclude a data processing agreement with the entities to which he transferred data in violation of Art. 28 (3) GDPR. Moreover, the Mayor violated the principle of storage limitation, the principles of integrity and confidentiality, the principle of accountability and furthermore kept an incomplete record of processing activities.

Recently, the Polish DPA also published the EU Project T4DATA’s Handbook for Data Protection Officers (DPO) in order to help define a DPO’s role, their competencies and main responsibilities.

More US States are pushing on with new Privacy Legislation

3. January 2020

The California Consumer Privacy Act (CCPA) came into effect on January 1, 2020 and will be the first step in the United States in regulating data privacy on the Internet. Currently, the US does not have a federal-level general consumer data privacy law that is comparable to that of the privacy laws in EU countries or even the supranational European GDPR.

But now, several other US States have taken inspiration from the CCPA and are in the process of bringing forth their own state legislation on consumer privacy protections on the Internet, including

  • The Massachusetts Data Privacy Law “S-120“,
  • The New York Privacy Act “S5642“,
  • The Hawaii Consumer Privacy Protection Act “SB 418“,
  • The Maryland Online Consumer Protection Act “SB 613“, and
  • The North Dakota Bill “HB 1485“.

Like the CCPA, most of these new privacy laws have a broad definition of the term “Personal Information” and are aimed at protecting consumer data by strenghtening consumer rights.

However, the various law proposals differ in the scope of the consumer rights. All of them grant consumers the ‘right to access’ their data held by businesses. There will also be a ‘right to delete’ in most of these states, but only some give consumers a private ‘right of action’ for violations.

There are other differences with regards to the businesses that will be covered by the privacy laws. In some states, the proposed laws will apply to all businesses, while in other states the laws will only apply to businesses with yearly revenues of over 10 or 25 Million US-Dollars.

As more US states are beginning to introduce privacy laws, there is an increasing possiblity of a federal US privacy law in the near future. Proposals from several members of Congress already exist (Congresswomen Eshoo and Lofgren’s Proposal and Senators Cantwell/Schatz/Klobuchar/Markey’s Proposal and Senator Wicker’s Proposal).

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.

Germany: Telecommunications provider receives a 9.5 Million Euro GDPR fine

16. December 2019

The German Federal Commissioner for Data Protection and Freedom of Information (BfDI) has imposed a fine of 9.55 Million Euro on the major telecommunication services provider 1&1 Telecom GmbH (1&1). This is the second multimillion Euro fine that the Data Protection Authorities in Germany have imposed. The first fine of this magnitude (14.5 Million Euro) was imposed last month on a real estate company.

According to the BfDI, the reason for the fine for 1&1 was an inadequate authentication procedure within the company’s customer service department, because any caller to 1&1’s customer service could obtain extensive information on personal customer data, only by providing a customer’s name and date of birth. The particular case that was brought to the Data Protection Authority’s attention was based on a caller’s request of the new mobile phone number of an ex-partner.

The BfDI found that this authentication procedure stands in violation of Art. 32 GDPR, which sets out a company’s obligation to take appropriate technical and organisational measures to systematically protect the processing of personal data.

After the BfDI had pointed 1&1 to the their deficient procedure, the company cooperated with the authorities. In a first step, the company changed their two-factor authentication procedure to a three step authentication procedure in their customer service department. Furthermore, they are working on a new enhanced authentication system in which each customer will receive a personal service PIN.

In his statement, the BfDI explained that the fine was necessary because the violation posed a risk to the personal data of all customers of 1&1. But because of the company’s cooperation with the authorities, the BfDI set the fine at the lower end of the scale.

1&1 has deemed the fine “absolutely disproportionate” and has announced to file a suit against the penalty notice by the BfDI.

Dutch DPA issued a statement regarding cookie consent

12. December 2019

The Dutch Data Protection Authority (Autoriteit Persoonsgegevens) has recently issued a statement regarding compliance with the rules on cookie consent. According to the statement the DPA has reviewed 175 websites and e-commerce platforms to see if they meet the requirements for the use of cookies. They found that almost half of the websites and nearly all e-commerce platforms do not meet the requirements for cookie consent.

The data protection authority has contacted the companies concerned and requested them to adjust their cookie usage.

In its statement, the Data Protection Authority also refers to the “Planet49case” of the Court of Justice of the European Union (“CJEU”) and clarifies that boxes that have already been clicked do not comply with the obligation to obtain the user’s consent. In addition, it is not equivalent to obtaining consent to the use of cookies if the user merely scrolls down the website. Cookies, which enable websites to track their users, always require explicit consent.

Lastly, the DPA recalls that cookie walls that prevent users, who have not consented to the use of cookies from accessing the website are not permitted.

Category: EU · GDPR · The Netherlands
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Austrian data protection authority imposes 18 million euro fine

22. November 2019

The Austrian Data Protection Authority (DPA) has imposed a fine of 18 million euros on Österreichische Post AG (Austrian Postal Service) for violations of the GDPR.

The company had among other things collected data on the “political affinity” from 2.2 million customers, and thus violated the GDPR. Parties should be able to send purposeful election advertising to the Austrian inhabitants with this information.

In addition, they also collected data on the frequency of parcel deliveries and the relocation probability of customers, so that these can be used for direct marketing.

The penalty is not yet final. Österreichische Post AG, half of which belongs to the Austrian state, can appeal the decision before the Federal Administrative Court. The company has already announced its intention to take legal action.

CNIL publishes report on facial recognition

21. November 2019

The French Data Protection Authority, Commission Nationale de l’Informatique et des Libertés (CNIL), has released guidelines concerning the experimental use of facial recognition software by the french public authorities.

Especially concerned with the risks of using such a technology in the public sector, the CNIL made it clear that the use of facial recognition has vast political as well as societal influences and risks. In its report, the CNIL explicitly stated the software can yield very biased results, since the algorithms are not 100% reliable, and the rate of false-positives can vary depending on the gender and on the ethnicity of the individuals that are recorded.

To minimize the chances of an unlawful use of the technology, the CNIL came forth with three main requirements in its report. It recommended to the public authorities, that are using facial recognition in an experimental phase, to comply with them in order to keep the chances of risks to a minimum.

The three requirements put forth in the report are as follows:

  • Facial recognition should only be put to experimental use if there is an established need to implement an authentication mechanism with a high level of reliability. Further, there should be no less intrusive methods applicable to the situation.
  • The controller must under all circumstances respect the rights of the individuals beig recorded. That extends to the necessity of consent for each device used, data subjects’ control over their own data, information obligation, and transparency of the use and purpose, etc.
  • The experimental use must follow a precise timeline and be at the base of a rigorous methodology in order to minimize the risks.

The CNIL also states that it is important to evaluate each use of the technology on a case by case basis, as the risks depending on the way the software is used can vary between controllers.

While the CNIL wishes to give a red lining to the use of facial recognition in the future, it has also made clear that it will fulfill its role by showing support concerning issues that may arise by giving counsel in regards to legal and methodological use of facial recognition in an experimental stage.

Category: EU · French DPA · GDPR · General
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Health data transfered to Google, Amazon and Facebook

18. November 2019

Websites, spezialized on health topics transfer information of website users to Google, Amazon and Facebook, as the Financial Times reports.

The transferred information are obtained through cookies and include medical symtoms and clinical pictures of the users.

Referring to the report of the Financial Times does the transfer take place without the express consent of the data subject, contrary to the Data Protection Law in the UK. Besides the legal obligations in the UK, the procedure of the website operators, using the cookie, contradicts also the legal requirements of the GDPR.

According to the requirements of the GDPR the processing of health data falls under Art. 9 GDPR and is a prohibition subject to permission, meaning, that the processing of health data is forbidden unless the data subject has given its explicit consent.

The report is also interesting considering the Cookie judgement of the CJEU (we reported). Based on the judgment, consent must be obtained for the use of each cookie.

Accordingly, the procedure of the website operators will (hopefully) change in order to comply with the new case law.

 

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