Tag: GDPR

CNIL judges use of Google Analytics illegal

14. February 2022

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

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

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

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

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

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

European Commission adopts South Korea Adequacy Decision

30. December 2021

On December 17th, 2021, the European Commission (Commission) announced in a statement it had adopted an adequacy decision for the transfer of personal data from the European Union (EU) to the Republic of Korea (South Korea) under the General Data Protection Regulation (GDPR).

An adequacy decision is one of the instruments available under the GDPR to transfer personal data from the EU to third countries that ensure a comparable level of protection for personal data as the EU. It is a Commission decision under which personal data can flow freely and securely from the EU to the third country in question without any further conditions or authorizations being required. In other words, the transfer of data to the third country in question can be handled in the same way as the transfer of data within the EU.

This adequacy decision allows for the free flow of personal data between the EU and South Korea without the need for any further authorization or transfer instrument, and it also applies to the transfer of personal data between public sector bodies. It complements the Free Trade Agreement (FTA) between the EU and South Korea, which entered into force in July 2011. The trade agreement has led to a significant increase in bilateral trade in goods and services and, inevitably, in the exchange of personal data.

Unlike the adequacy decision regarding the United Kingdom, this adequacy decision is not time-limited.

The Commission’s statement reads:

The adequacy decision will complement the EU – Republic of Korea Free Trade Agreement with respect to personal data flows. As such, it shows that, in the digital era, promoting high privacy and personal data protection standards and facilitating international trade can go hand in hand.

In South Korea, the processing of personal data is governed by the Personal Information Portection Act (PIPA), which provides similar principles, safeguards, individual rights and obligations as the ones under EU law.

An important step in the adequacy talks was the reform of PIPA, which took effect in August 2020 and strengthened the investigative and enforcement powers of the Personal Information Protection Commission (PIPC), the independent data protection authority of South Korea. As part of the adequacy talks, both sides also agreed on several additional safeguards that will improve the protection of personal data processed in South Korea, such as transparency and onward transfers.

These safeguards provide stronger protections, for example, South Korean data importers will be required to inform Europeans about the processing of their data, and onward transfers to third countries must ensure that the data continue to enjoy the same level of protection. These regulations are binding and can be enforced by the PIPC and South Korean courts.

The Commission has also published a Q&A on the adequacy decision.

EU Advocate General : Member States may allow consumer protection associations to bring representative actions against infringements of the protection of personal data

16. December 2021

On December 2nd, EU Advocate General Richard de la Tour published an opinion in which he stated that EU member states may allow consumer protection associations to bring representative actions against infringements of rights that data subjects derive directly from the General Data Protection Regulation (“GDPR”). In doing so, he agrees with the legal opinion of the Federation of the Bundesverband der Verbraucherzentralen und Verbraucherverbände – Verbraucherzentrale Bundesverband e.V. (Federation of German Consumer Organisations (“vzbv”)), which has filed an action for an injunction against Facebook in German courts for non-transparent use of data.

The lawsuit of the vzbv is specifically about third-party games that Facebook offers in its “App Center”. In order to play games like Scrabble within Facebook, users must consent to the use of their data. However, Facebook had not provided information about the use of the data in a precise, transparent and comprehensible manner, as required by Article 13 GDPR. The Federal Court of Justice in Germany (“Bundesgerichtshof”) already came to this conclusion in May 2020, but the Bundesgerichtshof considered it unclear whether associations such as the vzbv have the legal authority to bring data protection violations to court. It argues, inter alia, that it can be inferred from the fact that the GDPR grants supervisory authorities extended supervisory and investigatory powers, as well as the power to adopt remedial measures, that it is primarily the task of those authorities to monitor the application of the provisions of the Regulation. The Bundesgerichtshof therefore asked the Court of Justice of the European Union (“CJEU”) to interpret the GDPR. The Advocate General now affirms the admissibility of such an action by an association, at least if the EU member state in question permits it. The action for an injunction brought by the vzbv against Facebook headquarters in Ireland is therefore deemed admissible by the EU Advocate General.

The Advocate General states, that

the defence of the collective interests of consumers by associations is particularly suited to the objective of the General Data Protection Regulation of establishing a high level of personal data protection.  

The Advocate General’s Opinion is not legally binding on the CJEU. The role of the Advocate General is to propose a legal solution for the cases to the CJEUin complete independence. The judges of the Court will now begin their consultations in this case.

CNIL posts guidance on use of third-party cookie alternatives

France’s data protection authority, the Commission nationale de l’informatique et des libertés (CNIL), has published a guidance on the use of alternatives to third-party cookies.

The guidance aims to highlight that there are other ways to track users online than through third-party cookies, and that it is important to apply data protection principles to new technologies with tracking ability.

In the guidance, the CNIL gives an overview on what cookies are and the difference between first-party and third-party cookies, as well as the meaning of the two for personalized advertisement targeting.

It also highlights consent management and collection as being the key role to ensure a data protection compliant online tracking culture for new tracking methods and technologies. Further, the guidance also emphasizes that consent is not the only important requirement. In addition, online tracking and targeting methods should ensure that users keep control of their data and that all data subject rights are allowed and facilitated.

In light of this, the CNIL has gone ahead and published a guide for developers to help outline how to implement data protection compliant third-party cookies and other tracers in order to sensibilize people that are part of the implementation process as to how to stay compliant.

However, the CNIL also issued about 60 cookie compliance notices and 30 new orders to organizations for not offering users a data protection compliant ability to refuse cookies.

The CNIL has stepped up efforts to tackle cookie management and consent in order to ensure the rights and freedom of the data subjects in relation to their personal data online are kept safe. It has made clear that cookies are its main focus for the upcoming year, and that it will continue to hold companies liable for their insufficient data protection implementation.

Vinted under scrutiny by European data protection authorities

10. December 2021

The online clothing sales website vinted.com, operated by the Lithuanian company Vinted UAB, has recently had to face a large number of complaints regarding data protection aspects. The appeals were addressed to several national supervisory authorities, which, as a result, joined forces to investigate the website’s overall compliance with the GDPR. To this end, a task force was established, supported by the European Data Protection Board (EDPB), which held its first meeting on November 8th, 2021.

Vinted’s headquarters are located in Lithuania, which makes the State Data Protection Inspectorate (Lithuanian data protection authority) the leading supervisory authority. However, the platform is available in several other countries in Europe, whose supervisory authorities also received the aforementioned complaints. For this reason, the establishment of the task force was jointly decided by the national supervisory authorities from France, Lithuania and Poland. The aim of this task force is to ensure a coordinated approach to resolving the complaints received. It shall also enable a consistent and efficient examination of the compliance of Vinted’s data processing practices with the provisions of the GDPR.

The investigations focus in particular on the following issues:

  • website operator’s requirement to upload a scan of the user’s identity card in order to unblock funds received from sales on the corresponding account and the relevant legal basis,
  • procedure and criteria for blocking the user’s account and
  • applicable data retention periods.

This is not the first time Vinted has been accused of controversial practices. Back on May 18th, 2021, the French consumers group UFC Que Choisir filed a class-action lawsuit with 16 million users against the company for “misleading business practices.” These are said to consist of charging an allegedly optional commission on every transaction, the amount of which only appears at the time of payment.

EDPB publishes draft Guidelines regarding data transfer clarifications

25. November 2021

On November 19th, 2021, the European Data Protection Board (EDPB) published a new set of draft Guidelines 05/2021 on the interplay between the EU General Data Protection Regulation’s (GDPR) territorial scope, and the GDPR’s provisions on international data transfers.

The EDPB stated in their press release that “by clarifying the interplay between the territorial scope of the GDPR (Art. 3) and the provisions on international transfers in Chapter V, the Guidelines aim to assist controllers and processors in the EU in identifying whether a processing operation constitutes an international transfer, and to provide a common understanding of the concept of international transfers.”

The Guidelines set forth three cumulative criteria to consider in determining whether a processing activity qualifies as an international data transfer under the GDPR, namely:

  • the exporting controller or processor is subject to the GDPR for the given processing activity,
  • the exporting controller or processor transmits or makes available the personal data to the data importer (e.g., another controller, joint controller, or a processor and
  • the data importer is in a third country (or is an international organization), irrespective of whether the data importer or its processing activities are subject to the GDPR.

If all three requirements are met, the processing activity is to be considered an international data transfer under the GDPR, which results in the requirements of Chapter V of the GDPR to be applicable.

The Guidelines further clarify that the safeguards implemented to accommodate the international data transfer must be tailored to the specific transfer at issue. In an example, the EDPB indicates that the transfer of personal data to a controller in a third country that is subject to the GDPR will generally require fewer safeguards. In such a case, the transfer tool should focus on the elements and principles that are specific to the importing jurisdiction. This includes particularly conflicting national laws, government access requests in the receiving third country and the difficulty for data subjects to obtain redress against an entity in the receiving third country.

The EDPB offers its support in developing a transfer tool that would cover the above-mentioned situation.

The Guidelines are open for public consultation until January, 31st, 2022.

EDPB adopts new Guidelines on restrictions of data subject rights under Article 23 GDPR

25. October 2021

During its plenary session of October 2021, the European Data Protection Board (EDPB) adopted a final version of the Guidelines on restrictions of data subject rights under Art. 23 of the General Data Protection Regulation (GDPR) following public consultation.

The Guidelines “provide a thorough analysis of the criteria to apply restrictions, the assessments that need to be observed, how data subjects can exercise their rights after the restrictions are lifted, and the consequences of infringements of Art. 23 GDPR,” the EDPB stated in their press release.

Further, the Guidelines aim to analyze how the legislative measures setting out the restrictions need to meet the foreseeability requirement and examine the grounds for the restrictions listed by Art. 23(1) GDPR, as well as the obligations and rights which may be restricted.

These Guidelines hope to recall the conditions surrounding the use of the restrictions by the Member States in light of the Charter of Fundamental Rights of the European Union, and to guide Member States if they wish to implement restrictions under national law.

EDPB creates “Cookie Banner Taskforce”

5. October 2021

On September 27, 2021, the European Data Protection Board (EDPB) announced that it has established a “Cookie Banner” taskforce in order to coordinate the complaints and corresponding responses filed with several EU data protection authorities (DPA) by the non-governmental organization None of Your Business (NOYB) in relation to website cookie banners.

In May 2021 NOYB sent over 500 draft and formal complaints to companies residing in the EU regarding the use of their cookie banners. The complaints seem to focus on the absence of a “reject all” button on most of the websites as well as the way cookie banners use deceptive design in order to get data subjects to consent to the use of non-essential cookies. Another regular complaint is the difficulty for refusing cookies, as opposed to the simple way of consenting to them.

The EDPB stated that “this taskforce was established in accordance with Art. 70 (1) (u) GDPR and aims to promote cooperation, information sharing and best practices between the DPAs”. The taskforce is meant to exchange views on legal analysis and possible infringements, provide support to activities on the national levels and streamline communication.

The EU Whistleblowing Directive – An Overview

29. September 2021

The EU Whistleblower Directive was published in December 2019 and introduces minimum standards for the protection of individuals reporting breaches of EU law governing different areas of public interest, which are specified in the annex to the EU Whistleblower Directive. These include inter alia privacy and personal data protection as well as security of network information systems. The Directive aims to protect individuals who have become aware of such breaches in a work-related context, irrespective of their status from an employment law prospective. Employees, civil servants, self-employed service providers, freelance workers as well as volunteers and trainees and even shareholders will now be protected under the Whistleblower Directive.

Status of implementation in the EU Member states

EU member states are obliged to adapt the Whistleblower Directive into national law until December 17th, 2021. So far, the implementation is in process for at least 21 Member States.

Legislative proposals have been drafted in the following member states, and are up for discussion in their respective parliaments:

  • Belgium,
  • the Czech Republic,
  • Denmark,
  • France,
  • Romania,
  • the Netherlands.

First legislative steps have been taken in the following member states, where drafts are currently being planned or prepared:

  • Bulgaria,
  • Croatia,
  • Estonia,
  • Finland,
  • Greece,
  • Ireland,
  • Latvia,
  • Lithuania,
  • Poland,
  • Portugal.

Slovakia and Slovenia have enacted laws in first reaction to the Directive, however new laws for a full implementation are underway. In Germany, there is currently no comprehensive law that implements the Whistleblower Directive. At the time of this writing, a number of proposals are in development. The concrete implementation of the Directive in Germany has remained controversial between the governing parties. A draft bill of the Whistleblower Protection Act (Hinweisgeberschutzgesetz) submitted by the Federal Ministry of Justice was rejected within the government at the end of April 2021 because it provided for stricter regulations than the EU Directive.  A new draft is yet to be passed on to the next stage.

Naturally, operating channels and procedures for internal reporting of EU law breaches will inevitably involve the processing of personal data, and the EU legislators were clearly aware of the consequences, as the Whistleblower Directive generally states that any processing of personal data pursuant to the Whistleblower Directive must be carried out in accordance with EU data protection law and the General Data Protection Regulation (GDPR) in particular.

What this means for companies in the EU

In order for companies to understand how to comply with the EU Whistleblower Directive, it is important for businesses to keep the following data protection elements in mind:

  • Handle reports and the personal data of the reporter/whistleblower according to the principles of Art. 5 GDPR: lawfulness, fairness, transparency, purpose limitation, data minimisation, accuracy, storage limitation, integrity, confidentiality and accountability;
  • Have a legal basis for the processing of personal data and whistleblower reports (in this case Art. 6 para. 1 lit. c GDPR plus if applicable national data protection law in conjunction with the EU Whistleblower Directive);
  • Purpose limitation and data minimization for reports through Privacy by Design and Default (configuration of the reporting tool in a way that allows only data relevant to the report to be collected, irrelevant data should be deleted without undue delay);
  • Limit access to the reports by responsible employees only based on a strict and detailed authorization concept (Need-to-Know basis);
  • Ensure that the identity of the reporter/whistleblower remains confidential;
  • Inform all (potential) reporters/whistleblowers about the data processing activity in relation to the report and the following investigation process according to Art. 13 GDPR and the protection of their identity (preferably implemented in the reporting tools, so that the reporter/whistleblower is properly informed);
  • Documentation of the processing activity in a Record of Processing Activities according to Art. 30 GDPR;
  • Enter into GDPR compliant Data Processing Agreements with relevant service providers, if applicable;
  • Have applicable and GDPR compliant Technical and Organizational Measures in place;
  • Have a Retention Schedule in place (recommended deletion of personal data within two months after completion of the investigation unless legal proceedings follow);
  • Keep reports local unless necessary to disclose to other group entities due to the reports affecting other locations.

To date, there is very little official guidance available from EU data protection regulators. Sooner or later, EU data protection regulators will have to either issue updated guidance before the transposition laws at EU Member State level kick in or will encourage industry stakeholders to draw up a code of conduct for whistleblower reporting.

On the business side, successful implementation can protect your business and promote a better workplace culture. The Directive establishes three options for the reporting of information by whistleblowers:

  • Internal reporting channel within the business which are mandatory according to the Directive for businesses with 50 or more employees,
  • External reporting Channels facilitated through relevant authorities on a national or EU-level,
  • Under certain circumstances, the whistleblower can decide to publicly report the information, e.g. via social media.

These channels can either be:

  • Written – online reporting platform, email or post,
  • Verbal – phone hotline with messaging system or in-person.

We recommend staying updated on the developments on the EU Whistleblower Directive and the status of implementation within the EU member states. In the meantime, if you have questions on how the EU Whistleblower Directive might impact your business in Germany and the EU, do not hesitate to contact us.

Luxembourg’s National Commission for Data Protection fines Amazon a record-breaking 746 million Euros for misuse of customer data

11. August 2021

On August 6, 2021, Amazon disclosed the ruling of the Luxembourg data protection authority Commission nationale pour la protection des donées (CNPD) in an SEC filing, which imposed a record-breaking €746 million fine on Amazon Europe Core S.à.r.l. for alleged violations of the EU General Data Protection Regulation (GDPR) on July 16, 2021.

Based on press reports and Amazon’s public statements, the fine appears to relate to Amazon’s use of customer data for targeted advertising purposes.

The penalty is the result of a 2018 complaint by French privacy rights group La Quadrature du Net, a group that aims to represent the interests of thousands of Europeans to ensure their data is used according to data protection law in an attempt to avoid Big Tech companies manipulating their behavior for political or commercial purposes. The complaint also targets Apple, Facebook, Google and LinkedIn and was filed on behalf of more than 10,000 customers and alleges that Amazon manipulates customers for commercial means by choosing what advertising and information they receive.

Amazon stated that they „strongly disagree with the CNPD’s ruling“ and intend to appeal. „The decision relating to how we show customers relevant advertising relies on subjective and untested interpretations of European privacy law, and the proposed fine is entirely out of proportion with even that interpretation.”

The amount of the fine is substantially higher than the proposed fine in a draft decision that was previously reported in the press. The French data protection authority (CNIL) said Luxembourg’s decision, which is “of an unprecedented scale and marks a turning point in the application of the GDPR and the protection of the rights of European nationals.“

The CNIL confirmed the CNPD fined Amazon, and other European member states agreed to the Luxembourg decision. Amazon will have six months to correct the issue.

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