Tag: EDPB
17. June 2020
Since March 2020, Hungary has been in a “state of emergency” following the COVID-19 pandemic. The country’s COVID-19 related emergency laws and state of emergency received worldwide criticism from constitutional experts, politicians and civil rights groups, because it allows the Prime Minister to rule by decree during the state of emergency and does not provide a predefined end date. During the state of emergency, Prime Minister Victor Orbán made extensive use of his newly gained powers by passing more than a hundred decrees, including Decree No. 179/2020, which suspended the GDPR data subject rights in Art. 15-22 GDPR with respect to personal data processing for the purpose of preventing, understanding, detecting the coronavirus disease and impeding its further spread (we reported).
In response to this suspension of GDPR rights, the European Data Protection Board (“EDPB”) has recently published a Statement on restrictions on data subject rights pursuant to Art. 23 GDPR, which is the provision that Hungary’s measure was based on. This article allows the member states to restrict, by way of a legislative measure, the scope of the obligations and rights provided for in Articles 12 to 22 and Article 34, when such a restriction respects the essence of the fundamental rights and freedoms and is a necessary and proportionate measure in a democratic society to safeguard, inter alia, important objectives of general public interest of the Union or of a Member State such as public health.
In its Statement, the EDPB points out that any restriction must respect the essence of the right that is being restricted. If the essence of the right is compromised, the restriction must be considered unlawful. Since the data subject’s right of access and the right to rectification are fundamental rights according to Art. 8 para. 2 of the Charter of Fundamental Rights of the European Union, any restriction of those rights must be carefully weighed up by the member states, in order respect the essence of the rights. The EDPB considers that restrictions adopted in the context of a state of emergency suspending or postponing the application of data subject rights, without any clear limitation in time, equate to a de facto blanket suspension and denial of those rights and are not be compatible with the essence of the fundamental rights and freedoms.
The EDPB also recalls that the restrictions under Art. 23 GDPR must be necessary and proportionate. It argues that restrictions that are imposed for a duration not precisely limited in time or which apply retroactively or are subject to undefined conditions, are not foreseeable to data subjects and thus disproportionate.
Furthermore, the EDPB takes the view that in order to safeguard important objectives of general public interest such as public health (Art. 23 para. 1 lit. e GDPR), there must be a clearly established and demonstrated link between the foreseen restrictions and the objective pursued. The mere existence of a pandemic or any other emergency situation alone does not justify a restriction of data subject rights, especially if it is not clearly established, how the restrictions can help dealing with the emergency.
Following the international public backlash, the Parliament of Hungary passed legislation on 16 June 2020 to revoke the emergency laws as soons as the current state of emergency will be terminated by the Government. Hungary’s Government announced in May that it intends to lift the state of emergency on 20 June 2020. After that, the restrictions on the GDPR rights shall be lifted as well, so that data subject may exercise their Art. 15-22 GDPR rights again.
25. May 2020
Today we are continuing our miniseries on contact tracing apps and data protection with Part 2 of the series: The EDPB Guideline on the Use of Contact Tracing Tools. As mentioned in Part 1 of our miniseries, many Member States of the European Union have started to discuss using modern technologies to combat the spread of the Coronavirus. Now, the European Data Protection Board (“EDPB”) has issued a new guideline on the use of contact tracing tools in order to give European policy makers guidance on Data Protection concerns before implementing these tools.
The Legal Basis for Processing
In its guideline, the EDPB proposes that the most relevant legal basis for the processing of personal data using contact tracing apps will probably be the necessity for the performance of a task in the public interest, i.e. Art. 6 para. 1 lit. e) GDPR. In this context, Art. 6 para. 3 GDPR clarifies that the basis for the processing referred to in Art. 6 para. 1 lit. e) GDPR shall be laid down by Union or Members State law.
Another possible legal basis for processing could be consent pursuant to Art. 6 para. 1 lit. a) GDPR. However, the controller will have to ensure that the strict requirements for consent to be valid are met.
If the contact tracing application is specifically processing sensitive data, like health data, processing could be based on Art. 9 para. 2 lit. i) GDPR for reasons of public interest in the area of public health or on Art. 9 para. 2 lit. h) GDPR for health care purposes. Otherwise, processing may also be based on explicit consent pursuant to Art. 9 para. 2 lit. a) GDPR.
Compliance with General Data Protection Principles
The guideline is a prime example of the EDPB upholding that any data processing technology must comply with the general data protection principles which are stipulated in Art. 5 GDPR. Contact tracing technology will not be an exeption to this general rule. Thus, the guideline contains recommendations on what national governments and health agencies will need to be aware of in order to observe the data protection principles.
Principle of Lawfulness, fairness and transparency, Art. 5 para. 1 lit. a) GDPR: First and foremost, the EDPB points out that the contact tracing technology must ensure compliance with GDPR and Directive 2002/58/EC (the “ePrivacy Directive”). Also, the application’s algorithms must be auditable and should be regularly reviewed by independent experts. The application’s source code should be made publicly available.
Principle of Purpose limitation, Art. 5 para. 1 lit. b) GDPR: The national authorities’ purposes of processing personal data must be specific enough to exclude further processing for purposes unrelated to the management of the COVID-19 health crisis.
Principles of Data minimisation and Data Protection by Design and by Default, Art. 5 para. 1 lit. c) and Art. 25 GDPR:
- Data processed should be reduced to the strict minimum. The application should not collect unrelated or unnecessary information, which may include civil status, communication identifiers, equipment directory items, messages, call logs, location data, device identifiers, etc.;
- Contact tracing apps do not require tracking the location of individual users. Instead, proximity data should be used;
- Appropriate measures should be put in place to prevent re-identification;
- The collected information should reside on the terminal equipment of the user and only the relevant information should be collected when absolutely necessary.
Principle of Accuracy, Art. 5 para. 1 lit. d) GDPR: The EDPB advises that procedures and processes including respective algorithms implemented by the contact tracing apps should work under the strict supervision of qualified personnel in order to limit the occurrence of any false positives and negatives. Moreover, the applications should include the ability to correct data and subsequent analysis results.
Principle of Storage limitation, Art. 5 para. 1 lit. e) GDPR: With regards to data retention mandates, personal data should be kept only for the duration of the COVID-19 crisis. The EDPB also recommends including, as soon as practicable, the criteria to determine when the application shall be dismantled and which entity shall be responsible and accountable for making that determination.
Principle of Integrity and confidentiality, Art. 5 para. 1 lit. f) GDPR: Contact tracing apps should incorporate appropriate technical and organisational measures to ensure the security of processing. The EDPB places special emphasis on state-of-the-art cryptographic techniques which should be implemented to secure the data stored in servers and applications.
Principle of Accountability, Art. 5 para. 2 GDPR: To ensure accountability, the controller of any contact tracing application should be clearly defined. The EDPB suggests that national health authorities could be the controllers. Because contact tracing technology involves different actors in order to work effectively, their roles and responsibilities must be clearly established from the outset and be explained to the users.
Functional Requirements and Implementation
The EDPB also makes mention of the fact that the implementations for contact tracing apps may follow a centralised or a decentralised approach. Generally, both systems use Bluetooth signals to log when smartphone owners are close to each other. If one owner was confirmed to have contracted COVID-19, an alert can be sent to other owners they may have infected. Under the centralised version, the anonymised data gathered by the app will be uploaded to a remote server where matches are made with other contacts. Under the decentralised version, the data is kept on the mobile device of the user, giving users more control over their data. The EDPB does not give a recommendation for using either approach. Instead, national authorities may consider both concepts and carefully weigh up the respective effects on privacy and the possible impacts on individuals rights.
Before implementing contact tracing apps, the EDPB also suggests that a Data Protection Impact Assessment (DPIA) must be carried out as the processing is considered likely high risk (health data, anticipated large-scale adoption, systematic monitoring, use of new technological solution). Furthermore, they strongly recommend the publication of DPIAs to ensure transparency.
Lastly, the EDPB proposes that the use of contact tracing applications should be voluntary and reiterates that it should not rely on tracing individual movements but rather on proximity information regarding users.
Outlook
The EDPB acknowledges that the systematic and large scale monitoring of contacts between natural persons is a grave intrusion into their privacy. Therefore, Data Protection is indispensable to build trust, create the conditions for social acceptability of any solution, and thereby guarantee the effectiveness of these measures. It further underlines that public authorities should not have to choose between an efficient response to the current pandemic and the protection of fundamental rights, but that both can be achieved at the same time.
In the third part of the series regarding COVID-19 contact tracing apps, we will take a closer look into the privacy issues that countries are facing when implementing contact tracing technologies.
12. May 2020
In the face of the Corona pandemic, Hungary is currently in an indefinite “state of emergency”. Originally, Prime Minister Victor Orbán decreed the state of emergency on 11 March 2020 lasting for a period of 15 days. However, on 30 March 2020, the Hungarian Parliament passed emergency legislation (Bill on Protection against Coronavirus or Bill T/9790) extending the state of emergency until terminated by the Prime Minister and allowing the Prime Minister to rule by decree during the state of emergency. The Bill was passed thanks to the two-thirds majority of Orbán’s Fidesz Party in the Hungarian Parliament.
On 4 May 2020, Prime Minister Orbán issued Decree No. 179/2020 which contains several provisions affecting Data Protection in Hungary extensively for the time of the state of emergency.
Most importantly, the decree suspends the individual data subject’s rights pursuant to Art. 15 to 22 of the European GDPR when processing personal data for the purpose of preventing, recognising, and stopping the spread of the Coronavirus. It also stipulates that the one month time limit for Controllers to provide the necessary information (Art. 12 para. 3 GDPR) will only begin after the termination of the state of emergency for any Coronavirus related data subject requests. Furthermore, the data collection information requirements for Controllers pursuant to Art. 13 and 14 GDPR will be satisfied by publishing an electronic privacy notice providing the purpose and the legal basis of data processing which the data subjects may take notice of.
The emergency decree received much criticism from various European Data Protection authorities and civil rights groups. The head of the European Data Protection Board (“EDPB”) Andrea Jelinek stated that she is “personally very worried” about the developments, and described the Hungarian government’s decision as “unnecessary [and] detrimental”. In its most recent plenary session, the EDPB also specifically discussed Hungary’s emergency measures in light of European Data Protection Law.
27. April 2020
The European Data Protection Board (EDPB) adopted a new Guideline on the processing of health data for scienon the most urgent matters and issues in relation to the processing of health data. Those matters include the tific purposes in the context of the COVID-19 pandemic on April 21, 2020. It aims at providing clarity on the most urgent matters and issues in relation to the processing of health data. Those matters include the legal basis for processing, the implementation of adequate safeguards as well as data subjects’ rights.
The Guideline states that the GDPR contains several provisions for the processing of health data in relation to scientific research. The first one would be the consent in Art. 6 (II) a GDPR in combination with Art. 9 (II) a GDPR. The EDPB emphasizes the necessity of the consent having to meet all the necessary conditions in order to be valid, notably consent must be freely given, specific, informed, and unambiguous, and it must be made by way of a statement.
Further, the EDPB clarifies that Art. 6 (I) e or f GDPR in combination with the enacted derogations under Art. 9 (II) (i) or (j) GDPR can provide a legal basis for the processing of personal (health) data for scientific research. National legislators can implement their own derogations, setting ground for national legal bases in regulation with the GDPR.
The EDPB also addresses the case of further processing of health data for scientific purposes, which means the case when health data has not been collected for the primary purpose of scientific research. In these cases, the Guideline states that the scientific research is not incompatible with the original purpose of the processing, as long as the principles of Art. 5 GDPR are being upheld.
In regards to international transfers, the Guidelines make specific emphasis on the transfer to countries with no adequacy decision by the European Commission. In such cases, it is possible for the exporter of the data to rely on the derogations of Art. 49 (I) a, explicit consent, and d, transfer necessary for important public interest, GDPR. However, these derogations do not entitle continuous or repeated transfers, and are only supposed to be used as temporary measures. The EDPB states that this is a sanitary crisis like none before, and therefore the transfer to other countries in cases of scientific research form an international emergency in which the public interest may take first priority. But the Guideline makes clear that in case of repeated transfer, safeguards according to Art. 46 GDPR have to be taken.
The Guideline further emphasizes that situations like the current pandemic outbreak do not restrict data subjects to exercise their rights. However, Art. 82 (II) GDPR gives national lawmakers the possibility to restrict data subject rights, though these restrictions should apply only as is strictly necessary.
Over all, the EDPB states that it has to be noted that any processing or transfer will need to take into consideration on a case-by-case basis the respective roles (controller, processor, joint controller) and related obligations of the actors involved in order to identify the appropriate measures in each case.
13. August 2019
Recently, the EDPB has adopted its Guidelines on processing of personal data through video devices (“the guidelines”). The guidelines provide assistance on how to apply the GDPR in cases of processing through video devices with several examples, which are not exhaustive but applicable for all areas of using video devices.
In a first step, the guidelines set the scope of application. The GDPR is only applicable for the use of video devices if
- personal data is collected through the video device ( e.g. a person is identifiable on basis of their looks or other specific elements)
- the processing is not carried out by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, or,
- the so-called “household exemption” does not apply (processing by a natural person in the course of personal or household activity).
Before processing personal data through video devices, controllers must specify their legal basis for it. According to the guidelines, every legal ground under Article 6 (1) can provide a legal basis. The purposes for using video devices for processing personal data should be documented in writing and specified for every camera in use.
Another subject of the guidelines is the transparency of the processing. The controllers have to inform data subjects about the video surveillance. The EDPB recommends a layered approach and combining several methods to ensure transparency. The most important information should be written on the warning sign itself (first layer) and the other mandatory details may be provided by other means (second layer). The second layer must also be easily accessible for data subjects.
The guidelines also deal with storage periods and technical and organizational measures (TOMs). In some member states may be specific provisions for storing video surveillance footage, but it is recommended to – ideally automatically – delete the personal data after a few days. As with any kind of data processing, the controller must adequately secure it and therefore must have implemented technical and organizational measures. Examples provided are masking or scrambling areas that are not relevant to surveillance, or the editing out of images of third persons, when providing video footage to data subjects.
Until September 9th 2019, the guidelines will be open for public consultation and a final and revised version is planned for the end of 2019.
20. May 2019
Because of the GDPR’s first anniversary the EDPB published a new report that looks back on the first year GDPR.
Besides other findings of the report, the EDPB states that the national supervisory authorities received in total 281.088 complaints. 89.271 data breach notifications, 144.376 GDPR-related complaints and 47.441 other. Three month ago the number of received complaints were in total 206.326, 64.484 data breach notifications, 94.622 GDPR-related complaints from data subjects and 47.020 other. These number of complaints prove that the complaints have (on average) increased in the last three month.
At the time of the EDPB report 37% of the complaints are ongoing and 0,1% of the fined companies appealed against the decision of the supervisory authority. The other 62,9% were already closed. This proves that in contrast to the report after nine month, 2/3 of the complaints have been processed in the meantime. Three month ago only 52% were closed.
Referring to the EDPB report from three month ago, fines totalling € 55.955.871 were awarded for the detected violations by 11 authorities. With this high sum, however, it must be noted that € 50 million was imposed on Google alone. The current EDPB-report does not include a passage on fines.
All in all, the increase in queries and complaints, compared to the previous years, confirm the risen awareness on data protection. According to the Eurobarometer 67% of EU citizens have heard of the GDPR, 36% indicated that they are aware of the GDPR entails and 57% know about the existence of a public authority.
14. February 2019
On February 12, 2019 the European Data Protection Board (EDPB) released on their website a document containing a two-year Work Program.
The EDPB acts as an independent European body and is established by the General Data Protection Regulation (GDPR). The board is formed of representatives of the national EU and EEA EFTA data protection supervisory authorities, and the European Data Protection Supervisor (EDPS).
The tasks of the EDPB are to issue guidelines on the interpretation of key ideas of the GDPR as well as the ruling by binding decisions on disputes regarding cross-border processing activities. Its objective is to ensure a consistent application of EU rules to avoid the same case potentially being dealt with differently across various jurisdictions. It promotes cooperation between EEA EFTA and the EU data protection supervisory authorities.
The EDPB work program is based on the needs identified by the members as priority for individuals, stakeholders, as well as the EU legislator- planned activities. It contains Guidelines, Consistency opinions, other types of activities, recurrent activities and possible topics.
Furthermore, the EDPB released an information note about data transfers if a no-deal Brexit occurs. As discussed earlier, in this case the UK will become a so-called “third country” for EU member countries beginning from March 30. According to the UK Government, the transfer of data from the UK to the EEA will remain unaffected, permitting personal data to flow freely in the future.
29. November 2018
As the European Data Protection Board (EDPB) announced, the board adopted new draft guidelines on the territorial scope of the General Data Protection Regulation (GDPR). The goal of the guidelines is to “provide a common interpretation of the territorial scope of the GDPR and provide further clarification on the application of the GDPR in various situations”. The territorial scope is laid down in Article 3 GDPR.
In the meantime, the EDPB published a version of the guidelines for public consultation.
The guidelines cover the following topics:
- Application of the establishment criterion – Art 3 (1)
- Application of the targeting criterion – Art 3 (2)
- Processing in a place where Member State law applies by virtue of public international law
- Representative of controllers or processors not established in the Union
The guidelines not only describe and clarify the regulatory content of Article 3 GDPR. It also provides various examples from a practical point of view in order to simplify the issue. For controllers and processors of personal data, it is of significant relevance to know whether one falls under the scope of the GDPR considering the legal and possible financial consequences.
Therefore, legal terms should be as clear as possible. Already on the first pages, an example for the necessity to clarify and specify the regulatory content of Art 3 GDPR can be found. The EDPB points out, that the notion “establishment” (unlike the notion “main establishment”, which is defined in Article 4 (16) GDPR) is not defined in Article 3 GDPR, resulting in an attempt to clarify the term.
