Category: General
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.
18. January 2019
Prime Minister Theresa May’s draft withdrawal agreement to regulate Brexit was rejected by a clear majority of parliamentarians on 15th January. The draft withdrawal agreement has been agreed in November 2018 by the United Kingdom (UK) and the European Union (EU) – we reported: Brexit: Draft withdrawal agreement – GDPR remains applicable for foreseeable future – containing a transition period of 21-months in order to facilitate business sectors in their planning. Because of the recent rejection of the withdrawal agreement by the British Parliament, the scenario of the UK disorderly leaving the EU has now become quite likely. Among various economic and EU law issues, Brexit has also a concrete impact on data protection.
In case of a Brexit without corresponding transitional rules, the UK would be regarded as a third country under the General Data Protection Regulation of the EU (GDPR) as of 29th March 2019. This was also confirmed by Prof. Dr. Dieter Kugelmann, the State Data Protection Officer of Rheinland-Pfalz: “The fact is that the United Kingdom will become a “third country” within the meaning of the GDPR after leaving the EU.” Thus, an adaquacy decision would be required to transfer personal data of EU citizens or from the EU to the UK in the absence of any other mechanisms ensuring an adequate level of data protection according to Art. 44 ff. GDPR.
Since many companies currently transfer customer or employee data to the UK as well as a lot of data centres of service providers are located there, the Brexit will cause a need for adaption in terms of data protection matters. After the Brexit these Companies must ensure that there is an adequate legal basis for the relevant data transfers to the UK. Furthermore, according to Art. 13, 14 GDPR, the data subjects must be informed regarding the transfer of personal data outside the EU/EEA. All privacy policies on websites, privacy notices to employees etc. therefore would have to be adjusted. In the event of a data subject’s request for information, Art. 15 GDPR stipulates that the data subject must be informed about the transfer of his/her personal data to a third country. When personal data are transferred to the UK deemed as a third country, companies would eventually have to adjust their records of processing activities pursuant to Art. 30 GDPR.
It is recommended that in particular those companies transferring a lot of personal data to the UK at least are aware of these potentially required adaptations in order to further ensure compliance with EU data protection laws. As the GDPR, principally does not privilege any group of companies, the aforementioned recommendation also apply to data flows within such groups.
15. January 2019
Massachusetts’ data breach law has been significantly amended by the legislation signed by Gov. Charlie Baker on 10th January becoming effective as of 11th April this year. An overview of the key changes can be found following.
The amended law requires companies to provide certain additional information when notifying the Massachusetts Attorney General and the Office of Consumer Affairs and Business Regulation about a breach of security or the reasonable believe of the existence such a breach. This information include, but are not limited to “the nature of the breach of security or unauthorized acquisition or use”, the types of personal information compromised (e.g. social security numbers), “the number of residents affected by the incident at the time of notification”, the person responsible for the breach – if known -, and whether the entity maintains a written information security program according to Massachusetts 201 CMR § 17.03.
A further update concerns the notice of the affected individuals. The amended law explicitly sets out a rolling notification to individuals under certain circumstances and prohibits therefore a company from delaying notice to affected individuals referring to the ground that the total number of individuals affected has not yet been determined. “In such case, and where otherwise necessary to update or correct the information required, a person or agency shall provide additional notice as soon as practicable and without unreasonable delay upon learning such additional information.”
If the company experiencing a data security incident is owned by another entity, the particular notification to the affected individual must specify “the name of the parent or affiliated corporation”.
Another significant change to the data breach law refers to the requirement of providing an offer of complimentary credit monitoring for “a period of not less than 18 months” (42 months, if the company is a consumer reporting agency) when a Massachusetts resident’s Social Security number has been compromised, or is reasonably believed to have been compromised, in a data security incident. Also, Companies must certify their credit monitoring services to the Massachusetts attorney general and the Director of the Office of Consumer Affairs and Business Regulation in order to demonstrate compliance with the respective Massachusetts state law. Companies must eventually provide the credit monitoring services at no costs to the affected residents and are prohibited from asking them to waive their right to a private action as a condition for the reception of such services.
However, when these amendments become effective, beside Connecticut and Delaware, Massachusetts will have become one of those states providing a credit monitoring obligation when residents’ Social Security numbers are concerned by a breach of security. In fact, according to Public Act No. 18-90 that substitutes Senate Bill No. 472, Connecticut recently increased the required period of credit monitoring to be provided to the affected individuals from 12 to 24 months.
On August 14, 2018, Brazil’s former president Michel Termer signed the new General Data Privacy Law (Lei Geral de Proteção de Dados Pessoais or “LGPD”) (we reported). Although the law enlarges the country’s data protection framework, the final text did not contain the creation of a data protection authority.
On December 28, 2018, Temer signed a last-minute executive order (Medida Provisória no. 869/18), which made important changes to the LGPD including the implementation of the Brazilian National Data Protection Authority (Autoridade Nacional de Proteção de Dados or “ANPD”).
Despite the ANPD being an independent entity and being capable of freely handling and evaluating data protection and privacy issues, the authority still is part of the federal government and linked to the office of the President of Brazil.
According to the Executive Order no. 869/18 the ANPD has, among other things, the authority to:
- Release rules and regulations regarding privacy and data protection;
- Exclusively be responsible for monitoring and applying fines to non-compliant organizations;
- Within the administrative field, exclusively interpret the LGPD, including cases in which the law remain silent; and
- Promote privacy and data protection within the Brazilian society.
The new agency would consist of 28 members, five of them to be chosen by the president to constitute the board of directors and 23 members including public, private and third sector representatives to constitute an advisory board.
The order also establishes other important changes to the LGPD. For example that:
- The LGPD will come into force in August 2020, six months after the originally scheduled date. Until then the ANPD will have an advisory and collaborative function.
- The Data Protection Officer does not need to be an individual person. The tasks could be performed by an internal committee or department or could be outsourced to third parties such as specialized companies and law firms.
The executive order came into force immediately but must be voted into law by the Brazilian Congress to remain valid and become permanent.
7. January 2019
The French Data Protection Authority CNIL imposed a fine of €250.000,00 on telecom operator BOUYGUES TELECOM for not taking required security measures to protect the personal data of its clients.
BOUYGUES TELECOM offered their clients an option to create a profile on their webpage to have easier access to their contract details and telephone bills.
In March 2018, CNIL was informed that a lack of security measures gave free access to personal data of clients of B&You, a subsidiary company of BOUYGUES TELECOM. Each profile had its own URL address, which involved the first and last name of the client. Just by exchanging the name in the URL address, one gained free access to first and last name, date of birth, e-mail address, address and phone number as well as contracts and bills. The violation of data security went on for two years and had an impact on over two million clients.
Shortly after CNIL was informed, BOUYGUES TELECOM notified the data breach to CNIL. The company explained that the incident occurred after the computer code, which depends on user authentication, was deactivated for a test phase, but was forgotten to be re-activated after completion of the test phase. After noticing the data breach, the company quickly blocked the access to the personal data.
Nevertheless, CNIL stated that the company failed to protect the personal data of its clients and violated its obligation to take all required security measures, especially as appropriate measures would have revealed the data breach earlier.
As the incident occurred before the legal validity of GDPR, CNIL decided to impose a fine of €250.000,00 on BOUYGUES TELECOM.
1. January 2019
Dear readers,
the team of the blog privacy-ticker.com wish you a happy new year and all the best for 2019.
Once again this year we will keep you up to date on the subject of data protection.
Best regards,
privacy-ticker.com
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.
27. December 2018
Uber’s major data breach of 2016 still has consequences as it has also been addressed by the French Data Protection Authority “CNIL”.
As reported in November 2017 and September 2018, the company had tried to hide that personal data of 50 million Uber customers had been stolen and chose to pay the hackers instead of disclosing the incident to the public.
1,4 million French customers were affected as well which is why the CNIL has now fined Uber 400K Euros (next to the settlement with the US authorities amounting to $148 Million).
The CNIL came to find out that the breach could have been avoided by implementing certain basic security measures such as stronger authentication.
Great Britain and the Netherlands have also already imposed a fine totalling €1 million.
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.
12. December 2018
Due to the GDPR and the new French data protection law (“loi Informatique et Libertés”), the French Data Protection Authority (“CNIL”) launched two draft standards (in French: référentiels) on November 29, 2018. One o these CNIL’s draft standards deals with the processing of personal data to manage business activities, the other with unpaid invoices.
Until January 11, 2019 the possibility to consult the CNIL on the two draft Referentials will be open to the public. According to the CNIL, the draft standards will afterwards be adopted by the CNIL in plenary session.
CNIL’s Draft Referential on Data Processing for Managing Business Activities represents an update to the CNIL’s Simplified Norm No. 48 on the management of customers and prospective customers. It provides a framework for the implementation of “customer” and “prospect” files. The Draft Referential is applicable to data processing activities carried out by any data controller, except the following: health or educational institutions, banking or similar institutions, insurance companies and operators subject to approval by the French Online Gambling Regulatory Authority.
CNIL’s second draft (Draft Referential on Data Processing for Managing Unpaid Invoices) intends to provide a framework regarding the processing of personal data for managing unpaid invoices by private or public law entities. It does not apply to the processing of customer data for detecting risks of non-payment, or to identify other infringements (such as incivilities shown by customers).
Adherence to these two standards will ensure that the processing of unpaid invoices and business activities comply with current data protection principles.
