Category: General Data Protection Regulation
23. November 2020
At the end of October 2020, China issued a draft for a new „Personal Information Protection Law” (PIPL). This new draft is the introduction of a comprehensive system in terms of data protection, which seems to have taken inspiration from the European General Data Protection Regulation (GDPR).
With the new draft, China’s regulations regarding data protection will be consisting of China’s Cybersecurity Law, Data Security Law (draft) and Draft PIPL. The new draft legislation contains provisions relating to issues presented by new technology and applications, all of this in around 70 articles. The fines written in the draft for non-compliance are quite high, and will bring significant impact to companies with operations in China or targeting China as a market.
The data protection principles drawn out in the draft PIPL include transparency, fairness, purpose limitation, data minimization, limited retention, data accuracy and accountability. The topics that are covered include personal information processing, the cross-border transfer of personal information, the rights of data subjects in relation to data processing, obligations of data processors, the authority in charge of personal information as well as legal liabilities.
Unlike China’s Cybersecurity Law, which provides limited extraterritorial application, the draft PIPL proposes clear and specific extraterritorial application to overseas entities and individuals that process the personal data of data subjects in China.
Further, the definition of “personal data” and “processing” under the draft PIPL are very similar to its equivalent term under the GDPR. Organizations or individuals outside China that fall into the scope of the draft PIPL are also required to set up a dedicated organization or appoint a representative in China, in addition to also report relevant information of their domestic organization or representative to Chinese regulators.
In comparison to the GDPR, the draft PIPL extends the term of “sensitive data” to also include nationality, financial accounts, as well as personal whereabouts. However, sensitive personal information is defined as information that once leaked or abused may cause damage to personal reputation or seriously endanger personal and property safety, which opens the potential for further interpretation.
The draft legislation also regulates cross-border transfers of personal information, which shall be possible if it is certified by recognized institutions, or the data processor executes a cross-border transfer agreement with the recipient located outside of China, to ensure that the processing meets the protection standard provided under the draft PIPL. Where the data processor is categorized as a critical information infrastructure operator or the volume of data processed by the data processor exceeds the level stipulated by the Cyberspace Administration of China (CAC), the cross-border transfer of personal information must pass a security assessment conducted by the CAC.
It further to keep in mind that the draft PIPL enlarges the range of penalties beyond those provided in the Cybersecurity Law, which will put a much higher pressure on liabilities for Controllers operating in China.
Currently, the period established to receive open comments on the draft legislation has ended, but the next steps have not yet been reported, and it not yet sure when the draft legislation will come into full effect.
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.
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.
12. November 2020
In recent days, social networks in Poland have teemed with posts containing private addresses and telephone numbers of judges of the Constitutional Tribunal, politicians and activists openly supporting the abortion sentence. In conjunction with the publication of the above on Twitter, the President of the Personal Data Protection Office (UODO) took immediate steps to protect the personal data and privacy of these persons.
Background to this was the judgement of the Constitutional Tribunal repealing the provisions allowing abortion in cases of, for example, serious genetic defects or severe impairment of the human fetus. This provoked resistance from a part of Polish society and led to a street revolution of “liberal” men and women. Unfortunately, the agitation turned into invectives, destruction of property, public disorder and personal arguments. As a result, personal data of people supporting the prohibition of abortion have been shared thousands of times on all social media too. For this reason, numerous protesters appeared at the indicated houses, covered the walls of the surrounding buildings with vulgar inscriptions, and the addressees began to receive packages, e.g. with a set of hangers.
On October 29th, 2020 the President of the UODO responded to the case:
Publishing private addresses and contact details of pro-life activists, politicians and judges by users of the Twitter social network is an action leading to the disclosure of a wide sphere of privacy, and thus posing threats to health and life, such as possible acts of violence and aggression directed against these people and their family members.
The announcement stated that the President of the UODO requested an immediate procedure by the Irish supervisory authority, which is responsible for the processing of personal data via Twitter. Pointing out the enormous scale of threats, he indicated the need to verify the response time to reported irregularities and the possibility of introducing automated solutions to prevent the rapid furtherance of such content by other portal users. He also notified the law enforcement authorities that Twitter users had committed a crime consisting in the processing of personal data without a legal basis. The lawfulness had neither been guaranteed by consent according to Art. 6 (1) lit. a GDPR nor legitimate interests pursuant to Art. 6 (1) lit. f GDPR or any other legal basis. Thus, the processing has to be seen as illegitimate as also stated by the President of the UODO. The law enforcement authorities will be obliged to examine and document both the scope of personal data disclosed in a way that violates the principles of personal data protection and to determine the group of entities responsible for unlawful data processing. The President of the UODO also applied to the Minister of Justice – Public Prosecutor General for placing this case under special supervision due to the escalation of conflict and aggression, which pose a high risk of violating the life interests of both people whose data is published on social media and their family members.
In conclusion, the President of the UODO added:
The intensification of actions of all competent authorities in this matter is necessary due to the unprecedented nature of the violations and the alarming announcements of disclosing the data of more people, as well as the deepening wave of aggression.
29. October 2020
On October 27th, 2020 the Information Commissioner’s Office (ICO) issued an enforcement notice against the credit reference agency Experian Limited, ordering it to make fundamental changes to how it handles personal data related to its direct marketing services in the United Kingdom.
An ICO investigation found that at the three largest credit reference agencies (CRAs) in the UK significant ‘invisible’ processing took place, likely affecting millions of adults in the UK. Experian, Equifax and TransUnion, were ‘trading, enriching and enhancing’ people’s personal data without their knowledge to provide direct marketing services. The data was used by commercial organisations, political parties for political campaigning, or charities for their fundraising campaigns. Some of the CRAs were also using profiling to generate new or previously unknown information about people.
While Equifax and TransUnion made adequate improvements to their marketing practices, the ICO found Experian’s efforts to be insufficient and the processing of personal data to remain non-compliant with the data protection law. As a result, Experian has been given an enforcement notice compelling it to make changes within nine months or it will face financial penalties under the GDPR.
Experian is going to appeal the decision by the ICO regarding the notice over data protection failures. In a statement, the Chief Executive Officer Brian Cassin said:
We disagree with the ICO’s decision today and we intend to appeal. At heart this is about the interpretation of GDPR and we believe the ICO’s view goes beyond the legal requirements. This interpretation also risks damaging the services that help consumers, thousands of small businesses and charities, particularly as they try to recover from the COVID-19 crisis.
We share the ICO’s goals on the need to provide transparency, maintain privacy and ensure consumers are in control of their data. The Experian Consumer Information Portal makes it very easy for consumers to fully understand the ways we work with data and to opt out of having their data processed if they wish.
28. October 2020
On 3 November 2020, the day of the US Presidential Election, Californian citizens will also be able to vote on the California Privacy Rights Act of 2020 (“CPRA”) in a state ballot. The CPRA shall expand Califonian consumers’ privacy rights given by the California Consumer Privacy Act of 2018 (“CCPA”) which only came into effect on 2 January 2020.
The NGO “Californians for Consumer Privacy”, led by privacy activist Alastair Mactaggart, initiated the upcoming state ballot on the CPRA. Mactaggart’s NGO already qualified for a state ballot on the adoption of the CCPA by collecting over 629,000 signatures of California citizens in 2018. However, the NGO dropped the proposal in 2018 after California state legislators persuaded the intitiators that they will pass the CCPA through the legislative process. But because several significant amendments to the original proposal were passed during the legislative process, the NGO created the new CPRA initiative in 2020. This time, the group submitted more than 900,000 signatures. The CPRA is supposed to expand on the provisions of the CCPA. In case the CPRA is approved by California voters on November 3rd, it could not be easily amended and would require further direct voter action. Most provisions of the CPRA would become effective on 1 January 2023 and would only apply to information collected from 1 January 2022.
Some of the key provisions of the newly proposed CPRA seem to draw inspiration from the provisions of the European General Data Protection Regulations (“GDPR”) and include the establishment of an enforcement agency (the “California Privacy Protections Agency”), explicitly protecting “Sensitive Personal Information” of consumers and granting the right to rectify inaccurate personal information. The CPRA would furthermore require businesses to abide to information obligations comparable to those required by Art. 12-14 GDPR.
As the day of the state ballot is fast approaching, recent polls suggest that the CPRA will likely pass and complement the already existing CCPA, forming the US’ strictest privacy rules to date.
23. October 2020
The Norwegian Data Protection Authority (Datatilsynet) has issued the Norwegian Public Roads Administration (Statens vegvesen) a fine of EUR 37.400 (NOK 400.000) for improprieties related to the use of the monitoring system installed on toll ways in Norway. They concerned processing personal data for purposes that were noncompliant with the originally stated and for not erasing video recordings after 7 days from their registration.
The penalized entity is the controller of a system processing personal data obtained from the area of toll roads in Norway. This system records personal data which especially enable the identification of vehicles (and hence their owners) that pass through public toll stations. The primary purpose of processing these personal data was to ensure safety on public roads and to optimize the operation of the tunnel and drawbridges in the county Østfold. The Norwegian Public Roads Administration however, used the recordings particularly in order to document improper fulfilments of concluded contracts by certain subjects. According to the Norwegian Data Protection Authority, such procedure is unlawful and not compliant with the originally stated purposes.
The Norwegian Public Roads Administration was also accused of infringements related to deletion of personal data in due time. In accordance with Norwegian regulations, recordings from monitoring (and thus personal data) may be stored until the reason for its storage ceases, but no longer than 7 days from recording the material. In the course of proceedings it turned out that the monitoring system did not have the function of deleting personal data at all. Therefore, the Norwegian Public Roads Administration was not able to fulfil its obligation according to Art. 17 GDPR. The lack of this functionality additionally indicates that the controller, while implementing the monitoring system, also omitted the requirements specified in Art. 25 GDPR.
Taking into account these circumstances, the Norwegian Data Protection Authority stated a violation of the mentioned GDPR regulations.
22. October 2020
On 10th September 2019 the Polish Data Protection Commissioner imposed a record fine in the amount of more than PLN 2,8 million or the equivalent of € 660.000 on the company Morele.net for violating the implementation of appropriate technical and organisational measures as well as the lack of verifiability of the prior consents to data processing. The Krakow-based company runs various online shops and stores customer data on a central database. According to the Personal Data Protection Office (UODO), there has been 2,2 million customers affected.
Starting point were especially two incidents at the end of 2018, when unauthorised persons got access to the customer database of the company and the contained personal data. The company notified the data breach to the UODO, which accused it particularly of violation of the confidentiality principle (Articles 5 (1) lit. f, 24 (1), 25 (1), 32 (1) lit. b, d, (2) GDPR) by failing to use sufficient technical and organisational measures to safeguard the data of its customers, such as a two-factor authentication. As claimed by the UODO, the selection of the authentication mechanism should always be preceded by an adequate risk analysis with a corresponding determination of protection requirements. The company did not adequately comply with this. However, it should have been sufficiently aware of the phishing risks as the Computer Emergency Response Team (CERT Polska) had already pointed it out.
In addition, the UODO accused the company of violation of the lawfulness, fairness, transparency and accountability principles (Articles 5 (1) lit. a, (2), 6 (1), 7 (1) GDPR) by not being able to prove that (where necessary) the personal data from installment applications had been processed on the basis of consents of data subjects. Furthermore, after a risk analysis, the company deleted the corresponding data from the database in December 2018, but according to the UODO, the deletion was not sufficiently documented.
When assessing the fine, there were many aspects which played a decisive role. Most of all, the extent of the violation (2,2 million customers) and the fact that the company processes personal data professionally in the course of its business activities and therefore has to apply a higher level of security. However, mitigating circumstances were also taken into account, such as the good cooperation with the supervisory authority, no previous ascertainable violations of the GDPR and no identifiable financial advantages for the company.
On 3rd September 2020, the Provincial Administrative Court (WSA) in Warsaw issued a judgment on Morele.net’s appeal against the decision. The WSA dismissed the appeal and considered that the decision on the fine imposed on the company was justified. Furthermore, the WSA stated that the UODO had correctly assessed the facts in the case concerned and considered that the fine imposed was high but within the limits of the law and justified by circumstances. It is expected that the company will lodge a complaint with the Supreme Administrative Court of Poland.
21. October 2020
In the beginning of October, the Hamburg Data Protection Commissioner (“HmbBfDI”) imposed a record-breaking 35,258,707.95 Euro GDPR fine on the German branch of the Swedish clothing-retail giant H&M. It is the highest fine, based on a GDPR violation, a German Data Protection Authority has ever issued.
Since 2014, the management of the H&M service centre in Nuremberg extensively monitored the private lives of their employees in various ways. Following holidays and sick leaves of employees, team leaders would conduct so-called “Welcome Back Talks” in which they recorded employees’ holiday experiences, symptoms of illnesses and medical diagnoses. Some H&M supervisors gathered a broad data base of their employees’ private lives as they recorded details on family issues and religious beliefs from one-on-one talks and even corridor conversations. The recordings had a high level of detail and were updated over time and in some cases were shared with up to 50 other managers throughout the whole company. The H&M supervisors also used this Personal Data to create profiles of their employees and to base future employment decisions and measures on this information. The clandestine data collection only became known as a result of a configuration error in 2019 when the notes were accessible company-wide for a few hours.
After the discovery, the H&M executives presented the HmbBfDI a comprehensive concept on improving Data Protection at their Nuremberg sub-branch. This includes newly appointing a Data Protection coordinator, monthly Data Protection status updates, more strongly communicated whistleblower protection and a consistent process for granting data subject rights. Furthermore, H&M has apologised to their employees and paid the affected people a considerable compensation.
With their secret monitoring system at the service centre in Nuremberg, H&M severely violated the GDPR principles of lawfulness, fairness, and transparency of processing pursuant to Art. 5 no. 1 lit. a) and Art. 6 GDPR because they did not have a legal basis for collecting these Personal Data from their employees. The HmbBfDI commented in his statement on the magnitude of the fine saying that “the size of the fine imposed is appropriate and suitable to deter companies from violating the privacy of their employees”.
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.
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