Category: General

ECJ against data retention without any reason or limit

6. April 2022

In the press release of the judgment of 5.4.2022, the ECJ has once again ruled that the collection of private communications data is unlawful without any reason or limit. This reinforces the rulings of 2014, 2016 and 2020, according to which changes are necessary at EU and national level.

In this judgment, the ECJ states that the decision to allow data retention as evidence in the case of a long-standing murder case is for the national court in Ireland.

Questions regarding this issue were submitted in 2020 by Germany, France and Ireland. The EU Advocate General confirmed, in a legally non-binding manner, the incompatibility of national laws with EU fundamental rights.

However, a first exception to data retention resulted from the 2020 judgment, according to which, in the event of a serious threat to national security, storage for a limited period and subject to judicial review was recognized as permissible.

Subsequently, a judgment in 2021 stated that national law must provide clear and precise rules with minimum conditions for the purpose of preventing abuse.

According to the ECJ, an without cause storage with restriction should be allowed in the following cases:

  • When limited to specific individuals or locations;
  • No concrete evidence of crime necessary, local crime rate is sufficient;
  • Frequently visited locations such as airports and train stations;
  • When national laws require the identity of prepaid cardholders to be stored;
  • Quick freeze, an immediate backup and temporary data storage if there is suspicion of crime.

All of these are to be used only to combat serious crime or prevent threats to national security.

In Germany, Justice Minister Marco Buschmann is in favor of a quick freeze solution as an alternative that preserves fundamental rights. However, the EU states are to work on a legally compliant option for data retention despite the ECJ’s criticism of this principle.

European Commission and United States agree in principle on Trans-Atlantic Data Privacy Framework

29. March 2022

On March 25th, 2022, the United States and the European Commission have committed to a new Trans-Atlantic Data Privacy Framework that aims at taking the place of the previous Privacy Shield framework.

The White House stated that the Trans-Atlantic Data Privacy Framework “will foster trans-Atlantic data flows and address the concerns raised by the Court of Justice of the European Union when it struck down in 2020 the Commission’s adequacy decision underlying the EU-US Privacy Shield framework”.

According to the joint statement of the US and the European Commission, “under the Trans-Atlantic Data Privacy Framework, the United States is to put in place new safeguards to ensure that signals surveillance activities are necessary and proportionate in the pursuit of defined national security objectives, establish a two-level independent redress mechanism with binding authority to direct remedial measures, and enhance rigorous and layered oversight of signals intelligence activities to ensure compliance with limitations on surveillance activities”.

This new Trans-Atlantic Data Privacy Framework has been a strenuous work in the making and reflects more than a year of detailed negotiations between the US and EU led by Secretary of Commerce Gina Raimondo and Commissioner for Justice Didier Reynders.

It is hoped that this new framework will provide a durable basis for the data flows between the EU and the US, and underscores the shared commitment to privacy, data protection, the rule of law, and the collective security.

Like the Privacy Shield before, this new framework will represent a self-certification with the US Department of Commerce. Therefore, it will be crucial for data exporters in the EU to ensure that their data importers are certified under the new framework.

The establishment of a new “Data Protection Review Court” will be the responsible department in cases of the new two-tier redress system that will allow EU citizens to raise complaints in cases of access of their data by US intelligence authorities, aiming at investigating and resolving the complaints.

The US’ commitments will be concluded by an Executive Order, which will form the basis of the adequacy decision by the European Commission to put the new framework in place. While this represents a quicker solution to reach the goal, it also means that Executive Orders can be easily repealed by the next government of the US. Therefore, it remains to be seen if this new framework, so far only agreed upon in principle, will bring the much hoped closure on the topic of trans-Atlantic data flows that is intended to bring.

Belgian DPA declares technical standard used for cookie banner for consent requests illegal

28. March 2022

In a long-awaited decision on the Transparency and Consent Framework (TCF), the Belgian data protection authority APD concludes that this technical standard, which advertisers use to collect consent for targeted advertising on the Internet, does not comply with the principles of legality and fairness. Accordingly, it violates the GDPR.

The ADP’s decision is aligned with other European data protection authorities and has consequences for cookie banners and behavioral online advertising in the EU. The advertising association IAB Europe, which develops and operates the TCF system, must now delete the personal data collected in this way and pay a fine of 250,000 euros. In addition, conditions have been determined for the advertising industry under which the TCF may continue to be used at all.

Almost all companies, including advertising companies such as Google or Amazon, use the mechanism to pass on users’ presumed consent to the processing of their personal data for personalized advertising purposes. This decision will have a major impact on the protection of users’ personal data. This is also confirmed by Hielke Hijmans from APD.

The basic structure of the targeted advertising system is that each visit to a participating website triggers an auction among the providers of advertisements. Based on the desired prices and the user’s data profile, among other things, a decision is made in milliseconds as to which advertisements she will see. For this real-time bidding (RTB) to work, the advertising companies collect data to compile target groups for ads.

If users accept cookies or do not object that the use of their data is in the legitimate interest of the provider, the TCF generates a so-called TC string, which contains information about consent decisions. This identifier forms the basis for the creation of individual profiles and for the auctions in which advertising spaces and, with them, the attention of the desired target group are auctioned off, and is forwarded to partners in the OpenRTB system.

According to the authority, the TC strings already constitute personal data because they enable users to be identified with the IP address and the cookies set by the TCF. In addition, IAB Europe is said to be jointly legally responsible for any data processing via the framework, although IAB Europe has not positioned itself as a data processor, only as a provider of a standard.
The TCF envisions advertising providers invoking a “legitimate interest” in data collection in cookie banners that pop up all the time, rather than asking for consent. This would have to be prohibited, for example, for it to be lawful. The principles of privacy by design and by default are also violated, since consent is literally tricked by design tricks, the data flows are not manageable, and revocation of consent is hardly possible.

Google to launch Google Analytics 4 with aim to address EU Data Protection concerns

24. March 2022

On March 16, 2022, Google announced the launch of its new analytics solution, “Google Analytics 4”. Among other things, “Google Analytics 4” aims to address the most recent data protection developments regarding the use of analytical cookies and the transfers tied to such processing.

The announcement of this new launch comes following 101 complaints made by the non-governmental organization None of Your Business (NOYB) complaints with 30 EEA countries’ data protection authorities (DPA). Assessing the data transfer from the EU to the US after the Schrems II decision of the CJEU for the use of Google Analytics, the French and Austrian DPAs ruled that the transfer of EU personal data from the EU to the U.S. through the use of the Google Analytics cookies is unlawful under the GDPR.

In the press release, Google states that “Google Analytics 4 is designed with privacy at its core to provide a better experience for both our customers and their users. It helps businesses meet evolving needs and user expectations, with more comprehensive and granular controls for data collection and usage.”

However, the most important change that the launch of “Google Analytics 4” will have on the processing of personal data is that it will no longer store users’ IP addresses. This will limit the data processing and resulting transfers that Google Analytics was under scrutiny for in the EU, however it is unclear at this point if the EU DPAs will change their opinion on the use of Google Analytics with this new version.

According to the press release, the current Google Analytics will be suspended starting July 2023, and Google is recommending companies to move onto “Google Analytics 4” as soon as possible.

Dutch data protection authority imposes fine of €525,000

23. March 2022

The Dutch Data Protection Authority, autoriteit persoonsgegevens (hereinafter “ap”) imposed a fine of €525,000 on DPG Media at the beginning of March.

The background to the fine were access and deletion requests of various data subjects who had a newspaper subscription or received increased advertising. If a data subject wanted to know what personal data the company had collected about him, he had to send an ID document to DPG Media to prove his identity. The same applied to anyone who asked the company to delete their data. The customer was supposed to either upload a scan of his ID document or send it to the company by mail or letter.

DPG Media’s procedure for proof of identity was criticized for several reasons. From ap’s point of view, too much data was requested and it was made too difficult for the data subjects to assert their rights to access and deletion. If, for example, DPG Media had requested blackened ID documents, this method of proof of identity would also have been questionable. The ap emphasizes that requesting blackened ID documents is often disproportionate.

It also notes that ID documents are documents that are particularly worthy of protection. Especially regarding possible identity theft, they must be handled very carefully.

Thus, ap clarifies that, even if an identification document is in principle suitable for identifying the data subject, less intrusive identifiers should be used in preference. Milder identifiers, but equally suitable in this specific case, are for example to request the postal address for a telephone inquiry or – as recital 57 states – the use of an “authentication mechanism such as the same credentials, used by the data subject to log-in to the online service offered by the data controller.“

Irish DPC fines Meta 17 Million Euros over 2018 data breaches

16. March 2022

On March 15th, 2022, the Irish Data Protection Commission (DPC) has imposed a fine on Meta Platforms 17 million euros over a series of twelve data breaches, which happened from June to December 2018.

The inquiry of the DPC which led to this decision examined the extent to which Meta Platforms complied with the requirements of Arti. 5(1)(f), Art. 5(2), Art. 24(1) and Art. 32(1) GDPR in relation to the processing of personal data relevant to the twelve breach notifications.

As the result of this inquiry, the DPC found that Meta Platforms infringed Art. 5(2) and 24(1) GDPR.  In particular, the DPC assessed that Meta Platforms failed to have in place appropriate technical and organisational measures which would enable it to readily demonstrate the security measures that it implemented in practice to protect the data of its European users in the case of those twelve data breaches.

The processing under examination constituted a “cross-border” processing, and as such the DPC’s decision was subject to the co-decision-making process outlined in Art. 60 GDPR. This resulted in all of the other European supervisory authorities to be engaged in this decision as co-decision-makers.  While objections to the DPC’s draft decision were raised by two of the European supervisory authorities, consensus was achieved through further engagement between the DPC, and the supervisory authorities concerned.

“Accordingly, the DPC’s decision represents the collective views of both the DPC and its counterpart supervisory authorities throughout the EU,” the DPC stated in their press release.

A Meta spokesperson has commented on the decision, stating, “This fine is about record keeping practices from 2018 that we have since updated, not a failure to protect people’s information. We take our obligations under the GDPR seriously and will carefully consider this decision as our processes continue to evolve.”

ICO releases Guidance on Video Surveillance

7. March 2022

At the end of February 2022, The UK Information Commissioners’ Office (ICO) published a guidance for organizations that capture CCTVs footage in order to provide advice for when they operate video surveillance systems that view or record individuals.

The recommendations aim to focus on best practices for data activities related to “emerging capabilities that can assist human decision making, such as the use of Facial Recognition Technology and machine learning algorithms.” As per the Guidance, surveillance systems specifically include traditional CCTV, Automatic Number Plate Recognition, Body Worn Video, Drones, Facial Recognition Technology, dashcams and smart doorbell cameras.

In their Guidance, the ICO offers checklists with points that controllers can use in order to monitor their use of video surveillance and keep track of their compliance with the applicable law. It further touches on the principles of data protection and how they specifically apply to video surveillance. In addition, it helps companies with the documentation of a Data Processing Impact Assessment.

The Guidance gives in depth advice on video surveillance at the workplace as well as if video feeds should also record audio.

Overall, the Guidance aims to sensibilize controllers regarding the various issues faced with when using video surveillance, and gives them in depth help on what to do to be compliant with the data protection regulations in the UK.

Norwegian DPA aims to strengthen cookie regulations

22. February 2022

The Norwegian Data Protection Authority (DPA), Datatilsynet, has reached out to the Ministry of Local Government and District Affairs in a letter emphasizing the requirement of tightening cookie regulations in Norway.

This letter comes amid voices of consulting committees to delay the proposed tightened cookie regulations which have been on open consultation in Norway since the end of last year.

In the letter, the Datatilsynet points out the importance of strengthened cookie laws, specifically regarding the manner of obtaining consent and the design of the consent banners, which “are designed in ways that influence users to consent by making it more cumbersome and time consuming to not consent”.

The letter also references the French data protection authority’s decisions to fine Google €150 million and Facebook €60 million for inadequately facilitating refusal of cookies, as issued on 31 December 2021, and clearly outlined that in contrast to the practices for which Google and Facebook had been fined in France, the cookie practices would hardly have been considered problematic under the Norwegian cookie regulations, where illusory consents are allowed through pre-set browser settings.

Senior Legal Advisor Anders Obrestad stated that “these cases illustrate how unsustainable the current regulation of cookies and similar sports technologies in Norway are for the privacy of internet users”.

The Norwegian DPA hopes to be able to stop any delay in the strengthening of cookie regulations, as well as emphasize the importance of valid consent of internet users.

Apps are tracking personal data despite contrary information

15. February 2022

Tracking in apps enables the app providers to offer users personalized advertising. On the one hand, this causes higher financial revenues for app providers. On the other hand, it leads to approaches regarding data processing which are uncompliant with the GDPR.

For a year now data privacy labels are mandatory and designed to show personal data the app providers access (article in German) and provide to third parties. Although these labels on iPhones underline that data access does not take place, 80% of the analyzed applications that have these labels have access to data by tracking personal information. This is a conclusion of an analysis done by an IT specialist at the University of Oxford.

For example, the “RT News” app, which supposedly does not collect data, actually provides different sets of data to tracking services like Facebook, Google, ComScore and Taboola. However, data transfer activities have to be shown in the privacy labels of apps that may actually contain sensitive information of viewed content.

In particular, apps that access GPS location information are sold by data companies. This constitutes an abuse of data protection because personal data ishandled without being data protection law compliant and provided illegally to third parties.

In a published analysis in the Journal Internet Policy Review, tests of two million Android apps have shown that nearly 90 percent of Google’s Play Store apps share data with third parties directly after launching the app. However, Google indicates that these labels with false information about not tracking personal data come from the app provider. Google therefore evades responsibility for the implementation for these labels. Whereby, Apple asserts that controls of correctness are made.

Putting it into perspective, this issue raises the question whether these privacy labels make the use of apps safer in terms of data protection. One can argue that, if the app developers can simply give themselves these labels under Google, the Apple approach seems more legitimate. It remains to be seen if any actions will be taken in this regard.

CNIL judges use of Google Analytics illegal

14. February 2022

On 10th February 2022, the French Data Protection Authority Commission Nationale de l’Informatique et des Libertés (CNIL) has pronounced the use of Google Analytics on European websites to not be in line with the requirements of the General Data Protection Regulation (GDPR) and has ordered the website owner to comply with the requirements of the GDPR within a month’s time.

The CNIL judged this decision in regard to several complaints maybe by the NOYB association concerning the transfer to the USA of personal data collected during visits to websites using Google Analytics. All in all, NOYB filed 101 complaints against data controllers allegedly transferring personal data to the USA in all of the 27 EU Member States and the three further states of European Economic Area (EEA).

Only two weeks ago, the Austrian Data Protection Authority (ADPA) made a similar decision, stating that the use of Google Analytics was in violation of the GDPR.

Regarding the French decision, the CNIL concluded that transfers to the United States are currently not sufficiently regulated. In the absence of an adequacy decision concerning transfers to the USA, the transfer of data can only take place if appropriate guarantees are provided for this data flow. However, while Google has adopted additional measures to regulate data transfers in the context of the Google Analytics functionality, the CNIL deemed that those measures are not sufficient to exclude the accessibility of the personal data for US intelligence services. This would result in “a risk for French website users who use this service and whose data is exported”.

The CNIL stated therefore that “the data of Internet users is thus transferred to the United States in violation of Articles 44 et seq. of the GDPR. The CNIL therefore ordered the website manager to bring this processing into compliance with the GDPR, if necessary by ceasing to use the Google Analytics functionality (under the current conditions) or by using a tool that does not involve a transfer outside the EU. The website operator in question has one month to comply.”

The CNIL has also given advice regarding website audience measurement and analysis services. For these purposes, the CNIL recommended that these tools should only be used to produce anonymous statistical data. This would allow for an exemption as the aggregated data would not be considered “personal” data and therefore not fall under the scope of the GDPR and the requirements for consent, if the data controller ensures that there are no illegal transfers.

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