Category: General Data Protection Regulation

GDPR in numbers

6. February 2019

The European Commission lately posted an infographics about the impact of the General Data Protection Regulation (GDPR) since its entering into force on May 25, 2018. The graphic looks at complying, enforcement and awareness of the GDPR. It illustrates inter alia that:

  • In total 95.180 complaints to Data Protection Authorities came from individuals who believe their rights under GDPR have been violated. Most of the complaints were related to CCTV, telemarketing or promotional e-mails.
  • Until January, the number of notifications of data breaches has increased up to 41.502. The data controllers have to notify data breaches within 72 hours to their national supervisory authority.
  • Data Protection Authorities have initiated 225 investigations in cross border cases.
  • In Europe, 23 countries have adopted their national data protection law since the GDPR came into force. Bulgaria, Greece, Slovenia, Portugal and Czech Republic are still in progress doing so.
  • So far, three fines have been issued under GDPR. In Germany, a social network operator was fined € 20.000 for not securing its users data. In France, Google was fined € 50 million for lack of transparency, inadequate information and lack of valid consent regarding the ads personalization (we reported) and in Austria, a sports betting café was fined € 5.280 for unlawful video surveillance.

Aetna to pay fine for HIV privacy breach

31. January 2019

Healthcare insurer Aetna will have to pay a 935,000$ fine after letters had been sent to nearly 12.000 patients in 2017, disclosing highly sensitive information on the windows of the envelopes.

The information revealed that the recipients were taking HIV-related medications.

In addition, the insurance company will have to complete privacy risk assessments annualy for three years.

The patients have received compensation through a private class action settlement.

 

Data Protection Day

28. January 2019

On the occassion of this year’s Data Protection Day, which was launched in 2006 by the Council of Europe, the Commission has issued the following statement :

“This year Data Protection Day comes eight months after the entry into application of the General Data Protection Regulation on 25 May 2018. We are proud to have the strongest and most modern data protection rules in the world, which are becoming a global standard.”

On January 28th in 2006, the Council of Europe’s data protection convention, known as “Convention 108”, was opened to signature. Data Protection Day is now celebrated globally and is called Privacy Day outside of Europe.

More than 50 countries around the world have already signed up to the convention, which sets out key principles in the area of personal data protection.

The convention has been ratified by the 47 Council of Europe member states and Mauritius, Senegal, Uruguay and Tunisia. Other countries such as Argentina, Burkina Faso, Cabo Verde, Mexico and Morocco have been invited to accede. Many more participate as Observers States in the work of the Committee of the Convention (Australia, Canada, Chile, Ghana, Indonesia, Israel, Japan, Korea, New-Zealand, United States of America).

Governments, parliaments, national data protection bodies and other actors carry out activities on this day to raise awareness about the rights to personal data protection and privacy. These may include campaigns targeting the general public, educational projects for teachers and students, open doors at data protection agencies and conferences.

 

CNIL fines Google for violation of GDPR

25. January 2019

On 21st of January 2019, the French Data Protection Authority CNIL imposed a fine of € 50 Million on Google for lack of transparency, inadequate information and lack of valid consent regarding the ads personalization.

On 25th and 28th of May 2018, CNIL received complaints from the associations None of Your Business (“NOYB”) and La Quadrature du Net (“LQDN”). The associations accused Google of not having a valid legal basis to process the personal data of the users of its services.

CNIL carried out online inspections in September 2018, analysing a user’s browsing pattern and the documents he could access.

The committee first noted that the information provided by Google is not easily accessible to a user. Essential information, such as the data processing purposes, the data storage periods or the categories of personal data used for the ads personalization, are spread across multiple documents. The user receives relevant information only after carrying out several steps, sometimes up to six are required. According to this, the scheme selected by Google is not compatible with the General Data Protection Regulation (GDPR). In addition, the committee noted that some information was unclear and not comprehensive. It does not allow the user to fully understand the extent of the processing done by Google. Moreover, the purposes of the processing are described too generally and vaguely, as are the categories of data processed for these purposes. Finally, the user is not informed about the storage periods of some data.

Google has stated that it always seeks the consent of users, in particular for the processing of data to personalise advertisements. However, CNIL declared that the consent was not valid. On the one hand, the consent was based on insufficient information. On the other hand, the consent obtained was neither specific nor unambiguous, as the user gives his or her consent for all the processing operations purposes at once, although the GDPR provides that the consent has to be given specifically for each purpose.

This is the first time CNIL has imposed a penalty under the GDPR. The authority justified the amount of the fine with the gravity of the violations against the essential principles of the GDPR: transparency, information and consent. Furthermore, the infringement was not a one-off, time-limited incident, but a continuous breach of the Regulation. In this regard, according to CNIL, the application of the new GDPR sanction limits is appropriate.

Update: Meanwhile, Google has appealed, due to this a court must decide on the fine in the near future.

The Dutch DPA (Autoriteit Persoonsgevens) investigates several Data Processing Agreements

23. January 2019

Since the EU General Data Protection Regulation (GDPR) entered into force on May 25, 2018, the Dutch DPA regularly reviews whether organizations comply with data protection regulations. For example, the DPA previously investigated organizations (inter alia hospitals, banks, insurers) regarding their data protection officers and/or whether they keep a register of processing activities.

The Dutch Data Protection Authortiy, the so called Autoriteit Persoonsgevens, announced last week on its website that it had asked 30 private organizations to provide their Data Processing Agreements in use. The organizations in question mainly operate in the field of energy, media and trade.

Art. 28 GDPR states that a data controller must have a data processing agreement (DPA) with a data processor when the ladder is carrying out the data processing on behalf of the controller. This is for example the case when an organization outsources IT facilities. The controller remains responsible for the protection of the personal data and is only allowed to engage processors which can offer sufficient guarantees to ensure those requirements. Especially, the agreement must specify the type and categories of data that will be processed and the duration as well as the nature and purpose of the processing.

Political parties will be sanctioned for data breaches

22. January 2019

On Wednesday, 16th January 2019, EU Parliament and member state negotiators agreed that parties or political foundations can be sanctioned for data protection breaches during election campaigns. This regulation is intended to prevent any influence on the forthcoming European elections in May. It was decided that in such cases affected institutions would have to pay up to five percent of their annual budget in future.

One of the reasons for the new regulation was the data scandal surrounding Facebook and Cambridge Analytica. During the US election campaign, Facebook gained unauthorized access to the data of millions of its users. With this data, Cambridge Analytica is said to have tried to prevent potential Clinton supporters from voting and to mobilise Trump voters by means of advertising and contributions (we reported).

In future, data protection violations that are deliberately accepted in order to influence the outcome of European elections will be severely sanctioned. National supervisory authorities are to decide whether a party has violated the regulation. The Authority for European Political Parties and European Political Foundations must then review the decision and, if necessary, impose the appropriate sanction. Moreover, those found to be in breach could not apply for funds from the general budget of the European Union in the year in which the fine is imposed.

The text adopted on Wednesday still has to be formally adopted by Parliament and the Council of Member States.

USA: Call for National Privacy Law

28. December 2018

The Association of National Advertisers (ANA) is urging the Federal Trade Commission (FTC) to work towards a national privacy legislation and prevent fragmentation of the U.S. privacy landscape.
In its plea, the ANA specifically raises concerns about current developments regarding the General Data Protection Regulation (GDPR) and the California Consumer Privacy Act (CCPA). It deems both legislations to be overly restrictive and threatening to the free flow of information that “is vital to delivering the products and services that consumers value and expect” and asks the FTC to carry out a detailed review of the effects of the GDPR and the CCPA on competition and consumers.

The ANA is worried as “other states are considering additional and potentially inconsistent privacy and data security laws” and has been working with member companies and other industry groups to develop a new privacy paradigm that would be enforced by the FTC as a single national standard.

The approach involves allowing companies to use data considered “per se reasonable,” and prohibiting uses of data deemed “per se unreasonable.”
The reasonable practices “could include the collection and use of non-sensitive data for advertising purposes with consumer transparency and choice,” the ANA writes. Unreasonable ones “could include determining adverse terms or conditions or ineligibility for an individual’s: employment; credit; health care treatment; insurance; education and financial aid”.

The comments were filed in response to a request for input on the February 2019 FTC Hearing on Competition and Consumer Protection in the 21st Century, which will focus on consumer privacy.

Google changes Privacy Policy due to GDPR

19. December 2018

As it is widely known these days, the General Data Protection Regulation (GDPR) came into force earlier this year to standardize data protection regulation in the EU. This has now lead to the fact that Google will update the company’s terms of service and privacy policy to be compliant with the GDPR.

The company started to notify the countries in the European Economic Area (EEA) and Switzerland in regard to some upcoming changes. They will come into effect on January 22, 2019.

The most important update, also legally, is the change of the data controller. The Google Ireland Limited will become the so called “data controller” who is responsible for the information of European and Swiss users . Therefore, Google Ireland Limited will be in charge to respond to request from users and to ensure compliance with the GDPR. At present, these services are provided by Google LLC, based in the U.S.

For website operators this means that they might also have to adapt their privacy policy accordingly. This is the case, for example, if Google Analytics is used.

Furthermore, there are no changes in regard to the current settings and services.

Data Protection Commission announces statutory inquiry into Facebook

17. December 2018

The Irish Data Protection Commission announced in a press release on  December 14, 2018 that it had initiated a statutory inquiry into Facebook.

Due to the frequent, especially in the recent past, data breaches of the American company and the total number of reported data breaches since the GDPR came into force on May 25, 2018, the Irish Data Protection Commission has initiated an investigation into compliance with the relevant provisions of the GDPR against Facebook.

In recent weeks, reports of renewed breaches of data protection by Facebook have continued.

Most recently, it became known that the Italian competition authority AGCM had imposed a fine of 10 million euros on Facebook because the company had passed on data to other platforms without the express consent of the users and that a bug in the programming interface for picture processing led to third-party apps having access to pictures of 6.8 million Facebook users, some of which had not even been published by the users.

Electronic receipts sent by leading retailers may not comply with data protection rules

12. December 2018

After investigating several large retailers the consumer body Which? claims that many retailers in the UK include in their e-receipt marketing messages.

A lot of retailers offer the possibility to send digital receipts instead of paper receipts to the shoppers. However, it should be noted that when the General Data Protection Regulation (GDPR) came into force on May 25th earlier this year, the regulations concerning this area were tightened.

Retailers are not allowed to send direct marketing to new customers by email unless the recipient has consented to receive it. Shoppers must be given the opportunity to opt out in case the retailer asks for their email address at the point of sale with the intention to afterwards send marketing information.

According to Which? the following companies were visited at least three times by “mystery shoppers” to test if they send out unwanted marketing information in their e-receipts: Topshop, Dorothy Perkins, Nike, Clarks, New Look, Arcadia Group (Miss Selfridge, Outfit, Burton), Gap, Mothercare, Halfords, Currys PC World and Schuh. The “mystery shoppers” requested an electronic receipt without receiving any additional marketing.

The retailers dealt with this situation differently. One shop apparently sent a marketing email with the e-receipt as an attachment, while others included prompts to sign up for a newsletter or invitations to complete a survey in return for money off a future purchase. The concern is that consumers might be “bombarded” with unwanted marketing messages.

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