Category: Personal Data

EU Commission publishes Draft Adequacy Decision for South Korea

25. June 2021

On 16 June 2021, the European Commission published the draft adequacy decision for South Korea and transmitted it to the European Data Protection Board (EDPB) for consultation. Thus, the Commission launched the formal procedure towards the adoption of the adequacy decision. In 2017, the Commission announced to prioritise discussions on possible adequacy decisions with important trading partners in East and South-East Asia, starting with Japan and South Korea. The adequacy decision for Japan was already adopted in 2019.

In the past, the Commission diligently reviewed South Korea’s law and practices with regards to data protection. In the course of ongoing negotiations with South Korea, the investigative and enforcement powers of the Korean data protection supervisory authority “PIPC” were strengthened, among other things. After the EDPB has given its opinion, the adequacy decision will need to be approved by a committee composed of representatives of the EU Member States.

The decision of an adequate level of protection pursuant to Art. 45 of the General Data Protection Regulation (GDPR) by the Commission is one of the possibilities to transfer personal data from the EU to a third-country in a GDPR-compliant manner. The adequacy decision will serve as an important addition to the free trade agreement and a strengthening of cooperation between the EU and South Korea. Věra Jourová, the Commission’s Vice-President for Values and Transparency, expressed after launching the formal procedure:

“This agreement with the Republic of Korea will improve the protection of personal data for our citizens and support business in dynamic trade relations. It is also a sign of an increasing convergence of data protection legislation around the world. In the digitalised economy, free and safe data flows are not a luxury, but a necessity.”

Especially in light of the Schrems II decision of the Court of Justice of the European Union, the adequacy decision for South Korea will be an invaluable asset for European and South Korean companies conducting business with each other.

EDPB adopts final Recommendation 01/2020 on Supplementary Measures for Data Transfers to Third Countries

22. June 2021

On June 21st, 2021 during its 50th plenary session, the European Data Protection Board (EDPB) adopted a final version of its recommendations on the supplementary measures for data transfers.

In its recent judgment C-311/18 (Schrems II) the Court of Justice of the European Union (CJEU) has decided that, while the Standard Contractual Clauses (SCCs) are still a valid data transfer mechanism, controllers or processors, acting as exporters, are responsible for verifying, on a case-by-case basis and where appropriate, in collaboration with the importer in the third country, if the law or practice of the third country impinges on the effectiveness of the appropriate safeguards contained in the Article 46 GDPR transfer tools. In the cases where the effectiveness of appropriate safeguards is reduced due to the legal situation in the third country, exporters may need to implement additional measures that fill the gaps.

To help exporters with the complex task of assessing third countries and identifying appropriate supplementary measures where needed, the EDPB has adopted this recommendation. They highlight steps to follow, potential information sources as well as non-exhaustive examples of supplementary measures that are meant to help exporters make the right decisions for data transfers to third countries.

The recommendations advise exporters to follow the following steps in order to have a good overview of data transfers and potential supplementary measures necessary:

1. Know the data transfers that take place in your organization – being aware of where data flows is essential to identify potentially necessary supplementary measures;

2. Verify the transfer tool that each transfer relies on and its validity as well as application to the transfer;

3. Assess if a law or a practice in the third country impinges on the effectiveness of the transfer tool;

4. Identify and adopt supplementary measures that are necessary to bring the level of protection of the data transferred up to the EU standard;

5. Take formal procedural steps that may be required by the adoption of your supplementary measure, depending on the transfer tool you are relying on;

6. Re-evaluate the level of protection of the data you transfer at appropriate intervals and monitor any potential changes that may affect the transfer.

The EDPB Chair, Andrea Jelinek, stated that “the effects of Schrems II cannot be underestimated”, and that the “EDPB will continue considering the effects of the Schrems II ruling and the comments received from stakeholders in its future guidance”.

The recommendations clearly highlight the importance of exporters to understand and keep an eye on their data transfers to third countries. In Germany, the Supervisory Authorities have already started (in German) to send out questionnaires to controllers regarding their data transfers to third countries and the tools used to safeguard the transfers. Controllers in the EU should be very aware of the subject of data transfers in their companies, and prepare accordingly.

ICO fined several companies for data protection infringements

15. June 2021

The UK Information Commissioner’s Office (“ICO”) has fined several companies at the beginning of June for data protection infringements.

All fines have in common that the fined companies conducted marketing measures without having the required consent for doing so.

  • Conservative Party

The ICO has fined the Conservative Party £10,000 for sending 51 marketing emails without having the required legal basis and in violation of Regulation 22 of the Privacy and Electronic Communications Regulation 2003 (PECR).

The Conservative Party sent out a total of 1.190.280 marketing emails between July 24th and July 31st 2019, right after the election and in the name of Rt Hon Boris Johnson MP.

The ICO investigated that the party failed to ensure having a valid legal basis for marketing emails when changing the email provider. Even though the ICO assumes that there are more than 51 concerned data subjects, the ICO only received complaints of 51 individuals, thus the fine is based on this amount of concerned data subjects.

  • Colour Car Sales Ltd.

The ICO has fined Colour Car Sales Ltd (CCSL)  £170,000  for sending spam text messages from October 2018 to January 2020. CCSL is a credit intermediary for used car finance and the purpose of the spam texts was to direct the recipients to car finance websites.

Also in this case basis for the fine has been complaints of concerned data subjects which complained about not have given consent for receiving marketing emails from CCSL.

  • Solarwave of Grays

The ICO has fined Solarwave of Grays £100,000 for conducting 73.217 marketing calls about solar panel maintenance from January to October 2020.

The complainants that raised the concerns stated that they were registered with the Telephone Preference Service and should have received any marketing telephone calls based on this.

The Telephone Preference Service is the UK’s “do not call register” with which individuals can register to show that they are not interested in receiving any kind of marketing phone calls.

Beside the violation of the data protection law and the Telephone Preferences Service the concerned data subjects also stated that the callers were rude and persistent and ignored stop requests.

  • LTH Holdings

The ICO has fined LTH Holding, a Cardiff based telephone marketing company, £145,000 for conducting 1.4 million calls trying to sell funeral plans between May 2019 and May 2020.

In this case the ICO received 41 complaints and the complainants were also registered with the Telephone Preferences Service. Beside this infringement, the concerned data subjects also told the ICO that LTH adopted aggressive, coercive and persuasive methods to sell funeral plans.

  • Papa John’s

The ICO has fined Papa John’s Limited, a national takeaway pizza company, £10,000 for sending 168,022 nuisance marketing messages to its customers.

In this case the ICO received 15 complaints also stating the distress and annoyance the messages were causing. Some customers received up to 100 messages in two months without ever have given consent for marketing emails.

The ICO investigated that Papa John’s has sent over 210.000 messages to customers between October 1st 2019 and April 30th 2020.

In the contrary to the opinion of Papa John’s the ICO did not see the possibility to rely on “soft opt-in” because the data used for the marketing emails has been obtained for processing orders and not receiving marketing emails. Furthermore, the required information of the customers on this processing activity is missing.

Officers’ data leaked in Poland

28. May 2021

The Polish Personal Data Protection Office (UODO) has received a notification of a data breach involving the disclosure of personal data of uniformed services officers. The case is currently being analyzed and supplemented with additional materials and information that shall clarify all its circumstances.

The data controller also notified other authorities about the incident. Among these are the police, the Governmental Computer Security Incident Response Team (CSIRT NASK) and the National Public Prosecutor’s Office. The controller informed UODO that the individuals whose data was subject to the breach would be notified individually through the officers’ home units. Nevertheless, many aspects are still unclear. Therefore, in the course of the investigation, UODO sent a letter to the data controller asking for explanations related to the data breach. Any further action will depend on the information provided by the data controller.

As a result of this situation, UODO emphasises that there is a risk associated with the possibility of unauthorized use of the officers’ personal data, which may involve tangible harm to them. Such activity may include (identity) fraud and invasion of privacy.

In this respect, UODO reminds what actions should be taken to minimize the negative consequences of such a breach. First of all, one should be very careful when providing data via the Internet. Furthermore, it is important to carefully analyse all content included e.g. in SMS messages or e-mails in order to avoid phishing attacks in particular, the aim of which is to obtain additional personal data. In this connection, materials were provided by UODO with further tips on how to reduce the risk of identity theft.

Belarus passes first personal data protection law

27. May 2021

Last month, on April 2nd, the Belarusian House of Representatives adopted in the second reading the draft law “On the Protection of Personal Data”. The law was passed on May 7th. It is the first Belarusian legal act specifically intended to lay down issues of data protection.

The law is aimed at the legal regulation of social relations arising from the processing of personal data of individuals as well as ensuring the protection of such data and the rights and freedoms of individuals in the processing of their personal data. It implies that

Processing of personal data must be commensurate with the stated purposes of its processing and ensure at all stages a fair balance between the interests of all persons concerned.

The provisions concern in detail, inter alia:

  • definition of the categories of personal data as well as principles and conditions of their processing, with and without the use of automated means
  • determination of the process for cross-border transfer of personal data; in particular, it is prohibited if a foreign country does not provide an adequate level of protection of personal data subjects rights
  • determination of the data subject rights and obligations of public authorities, legal entities and natural persons within the processing of personal data, with regard to particularly the appointment of a Data Protection Officer and data breach notifications
  • establishment of additional safeguards against arbitrary and uncontrolled collection, storage, use, dissemination, provision and other processing of personal data
  • procedure for the establishment of an authority empowered with the protection of data subject rights and its competence; the foundation of the mentioned authority shall be assigned to the Council of Ministers of the Republic of Belarus together with the Operations and Analysis Center under the President of the Republic of Belarus within three months after the official publication of the corresponding law
  • liability for violation of the provisions.

The purpose of adopting this law is to ensure an adequate level of protection of personal data and to support the development of business, trade and economic relations of the Republic of Belarus with other countries.

The main provisions of the law shall enter into force six months after its official publication.

High Court dismisses Facebook’s procedural complaints in Data Transfer Case

18. May 2021

On Friday, May 14th 2021, the Irish High Court dismissed all of Facebook’s procedural complaints in a preliminary decision from Ireland’s Data Protection Commission regarding data transfers from the EU to the U.S. It rejected Facebook’s claims that the privacy regulator had given it too little time to respond or issued a judgment prematurely.

If finalized, the preliminary decision could force the social-media company to suspend sending personal information about EU users to Facebook’s servers in the U.S. While the decision of the High Court was only a procedural one, experts warn that the logic in Ireland’s provisional order could apply to other large tech companies that are subject to U.S. surveillance laws. This could potentially lead to a widespread disruption of trans-Atlantic data flows.

Facebook addressed the preliminary decision, stating that Friday’s court decision was procedural and that it planned to defend its data transfers before the Irish Data Protection Commission (DPC). It added that the regulator’s preliminary decision could be “damaging not only to Facebook, but also to users and other businesses.”

However, the Irish DPC still needs to finalize its draft decision ordering a suspension of data transfers and submit it to other EU privacy regulators for approval before it comes into effect. That process could take months, not counting potential other court challenges by Facebook.

Microsoft Cloud Services will store and process EU data within the EU

7. May 2021

On May 7th, 2021, Brad Smith, Microsoft’s President and Chief Legal Officer, announced in a blogpost that Microsoft will enable its EU commercial and public sector customers to store all their data in the EU. Microsoft calls this policy “EU Data Boundary” and it will apply across all of Microsoft’s core business cloud services, such as Azure, Microsoft 365 and Dynamics 365. Microsoft is the first big cloud provider to take such a step. The transition is intended to be done by the end of 2022.

This move can be seen as a reaction to the Court of Justice of the European Union’s (CJEU) “Shrems II” ruling in June 2020 (please see our blogpost), in which the CJEU ruled that the “EU-US-Privacy Shield” does not provide sufficient protection and therefore invalidating the agreement. The “Privacy Shield” was a framework for regulating the transatlantic exchange of personal data for commercial purposes between the EU and the USA.

However, the CJEU has clarified that server location and standard contractual clauses alone are not sufficient to meet the requirements of the General Data Protection Regulation (GDPR). This is because under U.S. law such as the “CLOUD Act”, U.S. law enforcement agencies have the power to compel U.S.-based technology companies to hand over requested data stored on servers, regardless of whether the data is stored in the U.S. or on foreign soil. So even with Microsoft’s proposed changes, U.S. authorities would still be able to access EU citizens’ personal data stored in the EU.

Microsoft believes it has found a way around the U.S. intelligence agencies: The U.S. intelligence agencies’ right of access could be technically worked around if customers effectively protected their data in the cloud themselves. To do this, customers would have to encrypt the data with a cryptographic key. In such a case, it would not be Microsoft that would manage the keys, but the customer themselves, and it would not be possible for Microsoft to hand over the keys to the US intelligence agencies. Microsoft also states that they are going above and beyond with their “Defending your Data” (please see our blogpost) measures to protect their customers’ data.

These measures by Microsoft are a step in the direction of a GDPR-compliant use of cloud applications, but whether they are sufficient to meet the high requirements of the GDPR may be doubted given the far-reaching powers of the US intelligence agencies. The reference to the possibility that users can encrypt their data themselves and keep the keys should help to comply with EU data protection standards, but must also be implemented in practice. Microsoft will have to educate its customers accordingly.

The GDPR-compliant transfer of personal data of EU citizens to the US remains uncertain territory, although further positive signals can be observed. For example, the new U.S. administration under President Joe Biden recently showed itself open to concluding a new comprehensive data protection agreement with the EU.

EDPB adopts opinion on draft UK adequacy decisions

16. April 2021

In accordance with its obligation under Article 70 (1) (s) of the General Data Protection Regulation (GDPR), on April 13th, 2021, the European Data Protection Board (“EDPB”) adopted its opinions on the EU Commissions (“EC”) draft UK adequacy decision (please see our blog post). “Opinion 14/2021” is based on the GDPR and assesses both general data protection aspects and the public authority access to personal data transferred from the EEA for law enforcement and national security purposes contained in the draft adequacy decision, a topic the EC also discussed in detail. At the same time, the EDPB also issued “Opinion 15/2021” on the transfer of personal data under the Law Enforcement Directive (LED).

The EDPB notes that there is a strong alignment between the EU and the UK data protection regimes, especially in the principles relating to the processing of personal data. It expressly praises the fact that the adequacy decision is to apply for a limited period, as the EDPB also sees the danger that the UK could change its data protection laws. Andrea Jelinek, EDPB Chair, is quoted:

“The UK data protection framework is largely based on the EU data protection framework. The UK Data Protection Act 2018 further specifies the application of the GDPR in UK law, in addition to transposing the LED, as well as granting powers and imposing duties on the national data protection supervisory authority, the ICO. Therefore, the EDPB recognises that the UK has mirrored, for the most part, the GDPR and LED in its data protection framework and when analysing its law and practice, the EDPB identified many aspects to be essentially equivalent. However, whilst laws can evolve, this alignment should be maintained. So we welcome the Commission’s decision to limit the granted adequacy in time and the intention to closely monitor developments in the UK.”

But the EDPB also highlights areas of concern that need to be further monitored by the EC:

1. The immigration exemption, which restricts the rights of those data subjects affected.

2. How the transfer of personal data from the EEA to the UK could undermine EU data protection rules, for example on basis of future UK adequacy decisions.

3. Access to personal data by public authorities is given a lot of space in the opinion. For example, the Opinion analyses in detail the Investigatory Powers Act 2016 and related case law. The EDPB welcomes the numerous oversight and redress mechanisms in the UK but identifies a number of issues that need “further clarification and/or oversight”, namely bulk searches, independent assessment and oversight of the use of automated processing tools, and the safeguards provided under UK law when it comes to disclosure abroad, particularly with regard to the application of national security exemptions.

In summary, this EDPB opinion does not put any obstacles in the way of an adequacy decision and recognises that there are many areas where the UK and EU regimes converge. Nevertheless, it highlights very clearly that there are deficiencies, particularly in the UK’s system for monitoring national security, which need to be reviewed and kept under observation.

As for the next steps, the draft UK adequacy decisions will now be assessed by representatives of the EU Member States under the “comitology procedure“. The Commission can then adopt the draft UK adequacy decisions. A bridging period during which free data transfer to the UK is permitted even without an adequacy decision ends in June 2021 (please see our blog post).

Thailand: Another delay of the Personal Data Protection Act

9. April 2021

On May 28th, 2019, the Personal Data Protection Act (“PDPA”) became law in Thailand. It is the country’s very first legislation governing data protection. Originally, a one-year grace period was determined for implementation of the requirements so that companies could prepare for the prospective liabilities in order to become compliant with the PDPA. However, on May 21st, 2020, a Royal Decree extended the implementation of the PDPA’s key provisions for another year, until June 1st, 2021 (we reported). Currently, a further postponement of the PDPA’s enforcement date is being considered.

According to new Digital Economy and Society (“DES”) Minister, consideration may be given to deferring or amending the PDPA, if the public has negative views about it. The aim is to support small and medium-sized businesses affected by the legislation since most of them are still unprepared for the new obligations and have not adjusted their internal processes yet. In addition, there is an unfortunate lack of willingness among companies concerned, as deputy permanent secretary at the DES Ministry stated. These shortcomings are reflected by the fact that some associations, including the travel and automotive industries, have already requested the deferral of the PDPA’s enforcement.

Contrary to what was initially planned, the appointment of members to the Personal Data Protection Committee is also expected to be delayed further. The Committee plays a decisive role in the approval of subsidiary legislation. The drafts for this concern consent procedures, complaint reception and expert panels.

According to the current status, the PDPA needs further adjustments and necessary regulations still need to be drafted, as many issues have been raised for consultation with regard to the PDPA since it came into effect. The main priorities on which the government intends to focus are as follows:

  • Supporting people’s access to innovation and technology,
  • Creating an ecosystem conducive to a digital economy,
  • Gearing up for digital infrastructure development, particularly 5G and smart city projects,
  • Legal development and enforcement to create a trusted digital ecosystem, especially for the PDPA and issues related to electronic transactions and cybersecurity,
  • Protecting the public from abuse on social media and the internet.

The DES Ministry expects that full enforcement of the PDPA will likely be delayed until the end of this year.

Ikea France on trial for spying on staff and customers

7. April 2021

Ikea’s French subsidiary and several of its former executives stood trial on Monday, March 22nd, 2021, after being sued by former employees on charges of violating privacy rights by surveilling the plaintiffs, job applicants and customers.

Trade unions reported the furniture and household goods company to French authorities in 2012, accusing it of fraudulently collecting personal data and disclosing it without authorization. The subsequent criminal investigation uncovered an extensive espionage system. According to French prosecutors, the company hired a surveillance company, private investigators and even a former military operative to illegally obtain confidential information about its existing and prospective employees as well as customers. The files received contained, inter alia, criminal records and bank statements. The system has been used for years, possibly even over a decade, to identify individuals who were particularly suspicious or working against the company.

After the case caused outrage in 2012, Ikea’s main parent company fired several executives at the French branch, including the former general manager. But the extensive activity in France has again raised questions about data breaches by the company.

At Monday’s trial an employee accused the company of abuse since it had wrongly suspected him of being a bank robber because its investigative system had found prior convictions of a bank robber with the same name. Others claimed the retailer had browsed through employees’ criminal records and used unauthorized data to reveal those driving expensive cars despite low incomes or unemployment benefits. Even an assistant director who had taken a year of medical leave to recover from hepatitis C was monitored to investigate whether she had faked the severity of her illness. Illicit background checks on hundreds of job applicants were also conducted. Moreover, the system was used to track down customers seeking refunds for mismanaged orders.

One of the defendants, the former head of Ikea France’s risk management department, has testified at the hearing that EUR 530.000 to 630.000 a year had been earmarked for such investigations. The former CEOs and Chief Financial Officer as well as store managers are also on trial. In addition, four police officers are accused of handing over confidential information from police files.

Ikea France said in a statement that it takes the protection of its employees’ and customers’ data very seriously. The company added that it adopted compliance and training procedures to prevent illegal activity and changed internal policies after the criminal investigation had been initiated. But at Monday’s hearing, Ikea France’s lawyers denied a system-wide surveillance. The case was also called “a fairy tale” invented by trade union activists.

The deputy prosecutor claimed, Ikea France had illegally monitored at least 400 people and used the information to its advantage. She is asking for a fine of EUR 2.000.000 against the company, prison sentences of at least one year for two former CEOs and a private investigator, as well as fines for some store managers and police officers. A total of 15 people have been charged. The company also faces potential claims for damages from civil lawsuits filed by unions and several employees.

The trial ended on April 2nd. A verdict by a panel of judges is scheduled for June 15th.

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