The French data protection Supervisory Authority (The CNIL) has issued a fine totaling EUR 400,000 against Monsanto for failing to inform individuals whose personal data was collected and processed  for lobbying purposes.

Further to the revelation by several media outlets, in May 2019, that Monsanto kept records on more than 200 political and civil society figures (e.g. journalists, environmental activists, scientists or farmers) likely to influence the debate or public opinion on the renewal of the authorization of glyphosate in Europe, the CNIL received seven complaints from individuals whose personal data was included in those records. The personal data included in those records included professional details (e.g. company name, position, business address, business phone number, mobile phone number, business email address and Twitter account), along with a score of 1 to 5, aiming at evaluating  their influence, credibility and support for Monsanto on various topics such as pesticides or genetically modified organisms.

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BACKGROUND

On 30 March 2021, the European Commission, in a joint statement with the Personal Information Protection Commission, the data protection authority of the Republic of Korea (Korea), declared that Korea ensured a level of protection for personal data that is similar to the level provided in the European Union (the EU) and, as such, is a jurisdiction deemed “adequate.” Further to this joint declaration, the European Commission completed its internal procedures and formally adopted the substance of this joint statement in a draft adequacy decision published on 14 June 2021. Once finalized, businesses will be allowed to transfer personal data freely from the EU and European Economic Area (EEA) to Korea without being required to provide further safeguards as required for “third country transfers” under the EU General Data Protection Regulation 2016/679 (GDPR). Once so adopted, the adequacy decision would cover transfers of personal data to commercial operators located in Korea, as well as Korean public authorities. However, the transfer of personal credit information that is subject to jurisdiction of Korea’s Financial Services Commission will be excluded from the coverage of the adequacy decision.  

The adequacy decision only relates to the transfer of personal data from the EU/EEA to a recipient in Korea, but it does not cover the general applicability of GDPR. In this context, any company (even outside the EU/EEA) that directly collects personal data from EU residents in connection with offering goods or services or monitoring of behavior of EU residents will still need to comply with the obligations set out in the GDPR for its collection of personal data. Also, significantly, the adequacy decision only covers data flow in one direction, from the EU to Korea, but not in the opposite direction, i.e., from Korea to the EEA. As noted below, barring any further statutory amendments, Korean privacy laws still require data handlers to obtain the consent of data subjects (as opposed to an opt-out) prior to transferring their personal data outside of Korea.

The conclusion of adequacy talks between Korea and the European Commission is a major step in their ongoing four-year dialogue regarding mutual recognition of personal data protection regimes. Korea has been preparing for this adequacy decision since 2015, when the Korean government established a joint public-private sector task force, which was charged with conducting data regulation-related feasibility studies, self-assessments, and comparative analyses in preparation for the first round of adequacy negotiations with the EU in 2017. After two extensive rounds of adequacy negotiations between the representatives of the European Commission and Korea ended without an adequacy finding, Korea decided to make significant amendments to its data protection laws. Such amendments were enacted by the National Assembly, Korea’s national legislature, in January 2020 and became effective in August 2020, thus paving the way for the March 2021 joint statement.

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Depending on whether you are an optimist or a pessimist, it will have taken the European Commission either three years and two weeks (since the entry into force of the General Data Protection Regulation (GDPR) or eleven months (since the Schrems II decision — see our Alert here) to publish its finalized revision of the most flexible tool to allow for the transfer of personal data to partners located in countries not otherwise providing an adequate level of data protection (Adequate Countries): the Standard Contractual Clauses (SCCs).

While Schrems II made headlines with its cancellation of the Privacy Shield framework, this mechanism only affected 5,000 companies in the United States. SCCs, on the other hand, remain the most widely used instrument to ensure an end-to-end sufficient level protection of personal data covered by European data protection. With their original version dating back 2001, an update was severely needed to align them with GDPR’s extensive reach and requirements.

IN A NUTSHELL:

  • The new SCCs were published on 4 June 2021:
    • Starting on 27 June 2021, companies will need to transition to the new SCCs;
    • On 27 December 2022, companies must have finalized their transition to the new SCCs.
  • Affected companies include:
    • EU-based entities sharing data with partners and providers located in countries deemed not to offer an adequate level of protection;
    • Non EU-based entities otherwise subject to GDPR’s extensive territorial reach (see our Alert here) sharing data with partners and providers located in countries deemed not to offer an adequate level of protection; and
    • Non-EU based entities receiving or processing personal data from or on behalf of EU-based partners or non-EU partners otherwise subject to GDPR.
  • Key new elements include:
    • Data exporting entities will need to assess the importing countries’ regulatory framework;
    • Where such framework cannot safeguard the transferred data subject to GDPR, additional measures must be implemented contractually, organizationally and/or technically;
    • Each and every step of the assessment, and the relevancy of the remediation measures, must be thoroughly documented; and
    • In the case of a controller/processor/sub-processor relationship, the new SCCs consolidate the requirements into a single agreement addressing the data processing requirements under Article 28 GDPR and the data transfer agreement.
  • While the new SCCs provide for a general framework, many issues are left to:
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Since the Schrems II decision of the Court of Justice of the European Union (CJEU) last year (see our alert here), companies in the European Union found themselves between a rock and a hard place, as many still rely on U.S.-based online service providers in one capacity or another, and the CJEU, in addition to totally invalidating the Privacy Shield framework, mandated additional requirements over the Standard Contractual Clauses (SCCs), the most widely used lawful transfer mechanisms.

Following this CJEU decision, the Bavarian Data Protection Authority (Bayerisches Landesamt für Datenschutzaufsicht) has now effectively barred a European online magazine from using the popular U.S.-based newsletter delivery service, Mailchimp.

Companies using Mailchimp to route their newsletters must generally transfer personal data (e.g., the recipients’ email addresses) to Mailchimp’s servers in the United States. Previously certified under the late EU-U.S. Privacy Shield framework, Mailchimp had to pivot to offer its European customers an alternative transfer mechanism, i.e. the SCCs. While their general validity was left untouched by the Schrems II decision, the CJEU argued that it may be required for companies relying on the SCCs to assess whether additional safeguards should be implemented on top of the SCCs in order to effectively protect personal data.

As expressly mentioned in the Schrems II decision, transfers to cloud service providers in the United States would require such additional safeguards, due to the broad investigative powers of U.S. authorities, e.g., under Section 702 (50 U.S.C. § 1881a) of the Foreign Intelligence Surveillance Act (Cloud Services Act).

Until now, it had seemed that the EU supervisory authorities had granted companies an unofficial grace period to adjust to the amended legal situation, especially as new templates for SCCs taking into consideration the Schrems II decision are expected to be finalized in the coming weeks.

The action of the Bavarian Data Protection Authority shows that this restraint might have come to an end. In a recent press release concerning this investigation, the authority commented that the case was exemplary for their enforcement of the requirements of the Schrems II decision, which had already been taken up with a high degree of intensity even without publicly perceived investigations or sanctions. 

The Bavarian Data Protection Authority based its action expressly on the fact that the European company has not assessed whether additional safeguards for transferring personal data to Mailchimp were required, in particular as Mailchimp may be subject to the Cloud Services Act. While no fine was imposed in this case and the Bavarian Data Protection Authority did not issue a formal decision, the authority still informed the company that their use of Mailchimp was (in their view) not in line with General Data Protection Regulation (GDPR) requirements. The company also promised to cease using Mailchimp in the future.

However, it should be noted that the official reason for not imposing a fine was on the one hand, the low sensitivity of the data transferred (email addresses only) and, on the other hand, the limited scope of the transmission (only two newsletters were sent). The details of the case being leaked and officially commented on by the supervisory authority could be considered as a warning to other EU companies transferring data to U.S. cloud service providers, which should probably expect less leniency from the supervisory authorities from now on. 

The current case was rather clear, as the European company in question has apparently taken no steps at all to establish and document whether additional safeguards were required and were already (because of this omission) in breach of their statutory obligations under GDPR. Future cases will probably not be as easy to decide, in particular when an EU company has documented a respective assessment or even implemented additional safeguards, and supervisory authorities and ultimately courts will have to assess what is really required to ensure adequate security of personal data in countries outside the European Union. 

Following the decision of the Bavarian Data Protection Authority, EU companies using U.S. online service providers, especially cloud services, are therefore encouraged to check the basis of their data transfers to the United States and, if necessary, adapt them to the new legal situation in order to avoid facing potentially high fines. 

K&L Gates’ global data protection team (including in each of our European offices) remains available to assist you in achieving the compliance of your data transfers at global levels.

First Publication: K&L Gates with Thomas Nietsch & Martin Fokken

The French Supervisory Authority (CNIL) wrapped up 2020 with a EUR 20,000 fine against NESTOR, a French food preparation and delivery company catering to office employees (see full Decision SAN-2020-018 in French).

The CNIL highlighted various breaches of the General Data Protection Regulation (GDPR) and the ePrivacy Directive regarding the processing of prospects and clients’ personal data by the CNIL, most notably:

While the fine is rather limited in view of the maximum potential amount of EUR 20 million or four percent of the turnover (whichever the greater), this decision presents an opportunity to examine web scraping and direct marketing practices, which are rapidly developing.

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When the General Data Protection Regulation1)Regulation (EU) 2016/679 on the Protection of Natural Persons with Regard to the Processing of Personal Data and on the Free Movement of Such Data, … Continue reading came into force throughout the European Union nearly three years ago, one of its most eye-catching features was its extraterritorial jurisdiction provisions. These extend the reach of the GDPR to businesses located outside the European Union who offer goods or services to EU residents or who monitor the behavior of EU residents2)Art. 3(2)(a) and (b) GDPR..

Under the threat of becoming liable for a breach of the GDPR and potential fines of up to €20m or four percent of global turnover (whichever the higher), many businesses based in the United States and other locations outside the European Union have simply taken a stance of refusing to deal with EU residents, including taking measures such as geo-blocking websites to EU-based visitors. Other businesses, in the United States and elsewhere, have found themselves contemplating whether they might be subject to the GDPR and how to react merely because they have made a new EU-based business connection, acquired the contact details of a potential customer in the European Union, or even become aware that an employee at a customer organization had moved to the European Union.

A court in the United Kingdom has now considered the limits of extraterritorial jurisdiction of the GDPR, which may provide some reassurance to overseas businesses that limited contact with EU residents via a website may not necessarily lead to them being subject to the GDPR.

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The French Supervisory Authority has set 31 March 2021 as the end of the “reasonable period” to bring websites and mobile applications into compliance.

Following the adoption and publication of its updated guidelines along with practical recommendations on the use of cookies on 1 October 2020 (see our alert on the subject here), the French Supervisory Authority (CNIL) reaffirmed on 4 February 2021 the need for private and public players to comply with the new obligations regarding cookies and other tracers (together, Cookies – See the CNIL press release of 4 February 2021 (in French)).

To make its action plan on online advertising effective and in view targeting of the deficiencies witnessed in both the public and private sectors, the CNIL set a specific deadline for the implementation of its recommendation: 31 March 2021.

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This article names K&L Gates among Global Data Review’s inaugural GDR 100, a ranking of the world’s best data law firms. The GDR 100 is the only global ranking that captures the capabilities, track record, and market reputation of the leading firms in the field. The ranking is based on in-depth submissions submitted by hundreds of law firms around the world, and profiles K&L Gates lawyers including Melbourne partner Cameron Abbott and Paris partner Claude-Etienne Armingaud. Read the article here (subscription required). 

As of 1 January 2021, the Brexit transition period (Transition Period) ended, and the United Kingdom (UK) officially finalized its exit from the European Union (EU) and the 11th-hour commercial agreement (Agreement) should allow for a smoother transition on the data protection front as the General Data Protection Regulation (GDPR) stops being directly applicable to the UK. It also provided the UK with a six-month grace period to hope for an adequacy decision that would allow for the free transfer of personal data from the EU to the UK.

As the European Data Protection Board (EDPB) amended on 13 January 2021 its Brexit communications² further to the Agreement (Communications), it only addresses:

  • The issue of data transfers from the EU to the UK;
  • The end of the One-Stop-Shop (OSS) mechanism for the UK; and
  • The need for UK entities that would be subject to GDPR to appoint a representative further to Art. 27 GDPR.

However, aside from enacting the end of the OSS and commenting that “the EDPB has been liaising with the ICO [Information Commissioner’s Office, the UK’s Supervisory Authority] over the past months in order to enable a smooth shift to this new situation by ensuring that the EEA authorities follow a shared and efficient approach in handling the existing complaints and cross-border cases involving the ICO, whilst minimizing delays and possible inconveniences to affected complainants[,]” the EDPB did not comment on how such collaboration will effectively play out for companies whose lead Supervisory Authority was the ICO.

Read the full article on Radar First blog.

43rd EDPB Meeting

December 17th, 2020 | Posted by Claude-Etienne Armingaud in Europe | Privacy - (0 Comments)
  1. Adoption of the minutes and of the agenda, Information given by the Chair
    1. Minutes of the 42nd EDPB meeting
    2. Draft agenda of the 43rd EDPB meeting
  2. Consistency mechanism, Guidelines and EDPB
    1. Key Provision ESG
      1. Guidelines on restrictions under Article 23 GDPR
    2. Financial Matters ESG
      1. Guidelines 06/2020 on the interplay of the Second Payment Services Directive and the GDPR (after public consultation)
    3. International Transfer ESG
      1. Guidelines 2/2020 on articles 46 (2) (a) and 46 (3) (b) of Regulation 2016/679 for transfers of personal data between EEA and non-EEA public authorities and bodies (after public consultation)
  3. Current Focus of the EDPB Members
    1. Data Governance Act COM (2020) 767 proposal – presentation by European Commission
    2. Information about the European Commission request for a joint EDPS-EDPB opinion regarding the Data Governance Act
    3. EDPB Strategy
    4. Support Pool of Experts
    5. Request for information from the European Commission regarding Brexit state of play (end of transitional period as well as the impact on EU-UK data flows and further information on possible adequacy decisions)
    6. Information note on data transfers under the GDPR to the United Kingdom after the Brexit transition period
  4. FOR DISCUSSION AND/OR ADOPTION – Expert Subgroups and Secretariat
    1. Cooperation ESG
      1. [BREXIT] Involvement of the UK SA in cooperation and consistency mechanisms
      2. Review of the internal documents on local cases
      3. Handling cross border complaints against public bodies or authorities – request for mandate
      4. Guidelines on handling complaints: revision of the mandate – request for mandate
    2. Compliance, e-Government and Health ESG
      1. Guidelines on certification criteria assessment – request for mandate
    3. Financial Matters ESG
      1. Statement on the protection of personal data processed in relation with the prevention of money laundering and terrorist financing
    4. International Transfers ESG
      1. Art. 64 GDPR Opinion on the draft decision of the Dutch Supervisory Authority regarding the Controller Binding Corporate Rules of Equinix
    5. Compliance, e-Government and Health ESG
      1. Stakeholder event on processing of data for medical and scientific research purposes – request for mandate
    6. Technology ESG
      1. Guidelines on anonymisation / pseudonymisation – request for mandate
    7. EDPB Secretariat
      1. 2021 February plenary
      2. Survey future meetings post COVID
  5. Any other business