17. November 2020
Following the recent judgment C-311/18 (Schrems II) by the Court of Justice of the European Union (CJEU), the European Data Protection Board (EDPB) published “Recommendations on measures that supplement transfer tools to ensure compliance with the EU level of protection of personal data” on November 11th. These measures are to be considered when assessing the transfer of personal data to countries outside of the European Economic Area (EEA), or so-called third countries. These recommendations are subject to public consultation until the end of November. Complementing these recommendations, the EDPB published “Recommendations on the European Essential Guarantees for surveillance measures”. Added together both recommendations are guidelines to assess sufficient measures to meet standards of the General Data Protection Regulation (GDPR), even if data is transferred to a country lacking protection comparable to that of the GDPR.
The EDPB highlights a six steps plan to follow when checking whether a data transfer to a third country meets the standards set forth by the GDPR.
The first step is to map all transfers of personal data undertaken, especially transfers into a third country. The transferred data must be adequate, relevant and limited to what is necessary in relation to the purpose. A major factor to consider is the storage of data in clouds. Furthermore, onwards transfer made by processors should be included. In a second step, the transfer tool used needs to be verified and matched to those listed in Chapter V of the GDPR. The third step is assessing if anything in the law or practice of the third country can impinge on the effectiveness of the safeguards of the transfer tool. The before mentioned Recommendations on European Essential Guarantees are supposed to help to evaluate a third countries laws, regarding the access of data by public authorities for the purpose of surveillance.
If the conclusion that follows the previous steps is that the third countries legislation impinges on the effectiveness of the Article 46 GDPR tool, the fourth step is identifying supplementary measures that are necessary to bring the level of protection of the data transfer up to EU Standards, or at least an equivalent, and adopting these. Recommendations for such measures are listed in Annex 2 of the EDPB Schrems II Recommendations. They may be of contractual, technical, or organizational nature. In Annex 2 the EDPB mentions seven technical cases they found and evaluates them. Five were deemed to be scenarios for which effective measures could be found. These are:
1. Data storage in a third country, that does not require access to the data in the clear.
2. Transfer of pseudonymized data.
3. Encrypted data merely transiting third countries.
4. Transfer of data to by law specially protected recipients.
5. Split or multi-party processing.
Maybe even more relevant are the two scenarios the EDPB found no effective measures for and therefore deemed to not be compliant with GDPR standards.:
6. Transfer of data in the clear (to cloud services or other processors)
7. Remote access (from third countries) to data in the clear, for business purposes, such as, for example, Human Resources.
These two scenarios are frequently used in practice. Still, the EDPB recommends not to execute these transfers in the upcoming future.
Examples of contractual measures are the obligation to implement necessary technical measures, measures regarding transparency of (requested) access by government authorities and measures to be taken against such requests. Accompanying this the European Commission published a draft regarding standard contractual clauses for transferring personal data to non-EU countries, as well as organizational measures such as internal policies and responsibilities regarding government interventions.
The last two steps are undertaking the formal procedural steps to adapt supplementary measures required and re-evaluating the former steps in appropriate intervals.
Even though these recommendations are not (yet) binding, companies should take a further look at the recommendations and check if their data transfers comply with the new situation.
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.
11. November 2020
Since 18 September 2020, the main provisions of the Brazilian Data Protection Law “LGPD” are in effect. At the same time, Brazilian businesses have been facing legal uncertainty because Brazil’s national Data Protection Authority (“ANPD”) is still not fully functional (we reported). The ANPD shall provide businesses with vital guidance, inter alia, by assessing foreign countries’ level of data protection for international data transfers, Art. 34 LGPD.
On 15 October 2020, the President of Brazil appointed the five members for the ANPD Board of Directors. Following the formal approval process of President appointees in Brazil (“Sabatina”), the Infrastructure and Services Commission of Brazil’s Senate approved of the President’s appointees on 19 October 2020.
Finally, on 20 October 2020, the Senate’s plenary approved of the five appointees. This marks another major step in the ANPD becoming fully operational. The serving terms of the Board of Directors will be staggered:
- Serving a six-year term: Waldemar Ortunho, current president of Telebras, a state-owned telecommunications company
- Serving a five-year term: Arthur Pereira Sabbat, currently the Director of the Institutional Security Office (GSI) for the Government’s cybersecurity
- Serving a four-year term: Joacil Basilio Rael, currently advisor at Telebras
- Serving a three-year term: Nairane Farias Rabelo, currently Partner at a law firm specialized in Tax Law and Data Protection Law
- Serving a two-year term: Miriam Wimmer, currently a Director of Telecommunications Services at the Brazilian Ministry of Science, Technology, Innovation and Communications
However, Annex II to the Presidential Decree 10.474 establishing the ANPD sets forth that many more yet vacant positions of the ANPD will have to be filled before it may be fully functional. Until then, Brazilian businesses remain waiting on guidance from the ANPD.
9. November 2020
The Information Commissioner’s Office (ICO) fines Marriott International Inc. (Marriott) £18.400.00 (€20.397.504).
The fine refers to a data breach which occurred in 2018. Back then the world’s largest hotel company based in the USA suffered a massive data breach affecting up to 383 million customers. For Marriott it is still not possible to state the exact number of people affected.
The ICO considers it proven that Marriott failed keeping customers’ personal data secure. In context of the breach confidential data like name, address and contact data as well as unencrypted passport and credit card data has been unauthorized accessed.
In a previous statement in 2019 the ICO announced, that it intends to fine Marriott with a fine of £99.200.396 (€109.969.591) this fine has now been reduced.
The reduction is based on the following reasons: the ICO considered the presentations from Marriott as well as the taken steps by Marriott as well as the consequences of the COVID-19 pandemic.
In October, the fine previously issued by the ICO against British Airways was also reduced, again partly because of the consequences of the COVID-19 pandemic.
Since the data breach occurred before the UK left the EU, the ICO investigated on behalf of all European Data Protection Authorities as lead Supervisory Authority and the fine has been approved by all other Authorities.
An unknown party breached Vastaamo, a Finnish private psychotherapy center. They accessed the electronic patient record, gathering thousands of confidential patient records. According to a message left on a Finnish web-forum, they accessed up to 40 000 confidential records of psychotherapy patients. These include not only confidential information regarding therapy sessions but also personal information, such as the social security number. In Finland, this number allows the user to take on credits or found companies. On September 29th Vastaamo notified the Finnish authorities, while they notified the affected via E-Mail and letter after October 21st.
Though the attack prompted an emergency meeting of the Finnish Cabinet, up until now neither Finnish authorities nor Vastaamo released information regarding the nature of the breach.
The initial breach likely occurred in November 2018, while it is believed, there was a second attack that occurred before March 2019. In September 2020, the hackers contacted Vastaamo, demanding a payment of 40 Bitcoin (€ 450 000,00). Vastaamo refused to pay and instead contacted the police and other Finnish authorities. On instruction by the Finnish National Police, Vastaamo published information regarding the data breach, only after some of the data was published on the Tor Network on October 21st. Furthermore, the Board dismissed former CEO Ville Tapio, claiming he concealed the breach.
Further, in late October, the hackers sent messages to patients and employees of Vastaamo, threatening to post their patient files on the internet and demanding payments in Bitcoin. The national police advised victims not to pay the hacker, and instead asked them to save extortion emails or other evidence and file a police report. Until October 30th, Finland’s national police received up to 15 000 reports of offenses regarding this data-breach.
The National Supervisory Authority for Welfare and Health started an investigation of Vastaamo, while the Social Insurance Institution of Finland stopped referrals to Vastaamo.
Ever since the beginning of the Covid-19 pandemic the healthcare and the public health sectors are attacked more frequently, especially in the form of ransomware. The FBI’s Cyber Security Unit (CISA) and the US Department of Health and Human Services have issued a joint advisory regarding the matter. Adding onto that, according to IBM’s annual Cost of a Data Breach Report, the healthcare sector has the highest average breach cost, at 7.13 million per breach.
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.
26. October 2020
Following public consultation, the Europan Data Protection Board (EDPB) adopted a final version of the Guidelines on Data Protection by Design & Default during its 40th plenary session on October 20th, 2020.
The Guidelines’ focal point is the obligation of Data Protection by Design and by Default as set forth in Article 25 GDPR. At its core is the effective implementation of the data protection principles and data subjects’ rights and freedoms by design and by default, which means that controllers are obliged to implement appropriate technical and organisational measures as well as the necessary safeguards, designed to establish data protection principles in practice and to protect the rights and freedoms of data subjects while processing their personal data.
The Guidelines further contain guidance on how to effectively implement the data protection principles in Article 5 GDPR, listing key design and default points, as well as giving examples through practical cases. They also provide recommendations for controllers on how to achieve Privacy by Design and Default.
However, this is not the only decision made by the EDPB during the plenary. The EDPB decided to set up a Coordinated Enforcement Framework (CEF), which provides a structure for coordinating recurring annual activities by EDPB Supervisory Authorities. The objective is to coordinate joint activities, which may range from joint awareness raising and information gathering to enforcement sweeps and joint investigations.
The EDPB hopes that this raises awareness, as well as give data subjects more confidence to excercise their rights under the GDPR.
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.
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