On a first day packed with fascinating insight at PrivSec Global, experts explored lessons that enterprise organisations have learned from the first three years of the GDPR.
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GDPR developments under focus on day one of PrivSec Global
September 22nd, 2021 | Posted by in Conference | Data Transfer | Europe | Privacy | World - (0 Comments) PrivSec Global – Global Data Protection and Privacy Law Developments: What Lessons Have Enterprise Organisations Learned from the First Three Years of The GDPR
September 6th, 2021 | Posted by in Conference | Data Breach | Data Transfer | Europe | Privacy - (0 Comments) GDPR fines have been increasing over the last 18 months, and it is proving to be a complex environment for the regulators and the regulated. But GDPR has not led to seismic changes (the possibility of entirely new operating models, for example), but has had a major effect on the ways organizations collect and use data. This panel will discuss the last few years and look ahead to gauge what we have learned and how things will and should change.
Speakers Include:
Jacob Høedt Larsen, Head of Communications, Wired Relations
Andreea Lisievici, Head of Data Protection Compliance, Volvo Car Corporation
Claude-Etienne Armingaud, CIPP/E, Partner & Practice Group Coordinator – Technology, Sourcing and Privacy, K&L Gates
GDPR – UK Unveils Plan to Diverge from GDPR
September 6th, 2021 | Posted by in Brexit | Data Transfer | Privacy - (0 Comments) The UK government has announced that it intends to consult on a new, post-Brexit data protection regime, potentially moving away from the UK General Data Protection Regulation that currently underpins the UK’s data protection legislation. The Digital Secretary, Oliver Dowden, said, “It means reforming our own data laws so that they’re based on common sense, not box-ticking.”
A public consultation on the new legislation will follow, but it is clear that the United Kingdom must be careful about any changes it makes to its data regime in order to avoid disrupting the EU-UK adequacy decision with EU GDPR awarded just two months ago. The adequacy decision allows personal data from the European Union to flow freely to the United Kingdom (and vice versa), without businesses needing to put any additional paperwork in place. In granting the adequacy decision, the European Union placed particular emphasis on the fact that the United Kingdom was continuing to base its data protection laws on the same EU GDPR rules that had applied when it was a member of the European Union. A European Commission spokesperson commented that the EU will be closely monitoring any developments in UK data laws and noted that: “In case of problematic developments that negatively affect the level of protection found adequate, the adequacy decision can be suspended, terminated or amended, at any time by the Commission.”
It will be interesting to see how far the United Kingdom diverges, particularly as the current trend is that other countries seem to be keen to state that their data protection laws closely follow the EU GDPR.
The UK government also announced that its preferred candidate to be the next Information Commissioner, head of the UK data protection regulator, will be John Edwards, currently in charge of New Zealand’s data regulator, a country that also maintains an EU adequacy decision.
First publication: K&L Gates Cyber Law Watch Blog with Noirin McFadden
EU-UK Adequacy Decisions Finalized
June 30th, 2021 | Posted by in Brexit | Data Transfer | Privacy - (0 Comments) On 28 June 2021, within 48 hours of the expiration of the post-Brexit grace period under the UK-EU Trade and Cooperation Agreement, the European Commission has adopted two adequacy decisions addressing the transfers of personal data to the United Kingdom under the General Data Protection Regulation (GDPR) and the Law Enforcement Directive, respectively (together, the UK Adequacy Decisions).
Both texts prohibit the transfer of personal data to “third countries” unless (a) the destination country benefits from (i) an adequacy decision or (ii) appropriate safeguards, such as standard contractual clauses (see our alert here) or codes of conduct (see our alert here); or (b) one of the limited derogations under Article 49 GDPR applies.
The UK Adequacy Decisions will allow a seamless flow of personal data between the United Kingdom and the European Union, concluding a six-month race against time (see our alert here).
Key Points to Note:
- Despite the severe concerns raised by the European Data Protection Board in its Opinion 14/2021, due to the United Kingdom’s national security, intelligence, and surveillance regime, the European Commission deemed that the United Kingdom provided for “strong safeguards” in relation to access to personal data by public authorities for national security reasons.
- The European Commission will closely monitor any evolution in the UK data protection framework that would lead to divergence with the EU regulations. This is particularly relevant because the United Kingdom announced it could revise its privacy framework for a more liberal approach in the coming months (see the Final Report from the Task Force on Innovation, Growth and Regulatory Reform), foreshadowing the UK government’s National Data Strategy, currently under consideration. As such, the European Commission may intervene at any given point to repeal the UK Adequacy Decisions.
- The UK Adequacy Decisions are subject to a sunset clause, i.e., unless expressly renewed, based on a new assessment of the UK regulatory framework, the UK Adequacy Decisions will expire in four years. This is markedly a different process from prior adequacy decisions, which typically renew by default without any need to go through a new review and adoption process. The addition of the sunset clause seems to suggest that the United Kingdom’s cards have been marked, and if the relationship between the United Kingdom and the European Union deteriorates in the next few years, this could mean the end of EU-UK adequacy at that time.
- For the time being, any personal data transfers relating to UK immigration control are excluded from the scope of the UK Adequacy Decisions, pending remediation under UK law.
- While the United Kingdom now belongs to the increasing group of third countries benefiting from an adequacy decision (including Japan and the Republic of Korea), it does not relieve companies subject to the UK data protection framework from the requirement to appoint an EU representative under Article 27 GDPR or, similarly, for EU companies subject to the UK GDPR to appoint a representative in the United Kingdom.
The firm’s 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 Hub in collaboration with Sunny J. Kumar, Noirin M. McFadden, Keisha Phippen
A New Framework for Transfers of Personal Data EU and Korea Conclude Adequacy Decision Talks
June 25th, 2021 | Posted by in Data Transfer | Europe | Privacy | World - (0 Comments) 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.
(more…)GDPR – Data Transfers 2.0: Navigating Through Post-Schrems II Waters
June 11th, 2021 | Posted by in Data Transfer | Europe | Privacy | World - (0 Comments) 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:
- The expected interpretation and guidance from the European Data Protection Board (EDPB); and
- Contractual negotiations between the stakeholders.
German Supervisory Authority Initiates-Post-Schrems II Enforcement Against EU Companies Using U.S. Service Providers
April 2nd, 2021 | Posted by in Data Transfer | Europe | Privacy - (0 Comments) 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
GDPR/Brexit – Brexit and European Data Protection – For Auld Lang Syne, My Dear!
January 20th, 2021 | Posted by in Data Transfer | Privacy - (0 Comments) The European Union (EU) and the United Kingdom (UK) finally came to an agreement on 24 December 2020 (EU-UK Trade and Cooperation Agreement, the Agreement), less than ten days after the European Data Protection Board (EDPB) published a statement on the consequences a no-deal situation would have on the flows of personal data between the EU and the UK (for previous coverage of General Data Protection Regulation (GDPR) and Brexit, please see our alert here). This statement has since been updated on 13 January 2021.
(more…)GDPR/Brexit – Brexit, GDPR, and the Timeline for Data Breaches
January 19th, 2021 | Posted by in Data Breach | Data Transfer | Europe | Privacy - (0 Comments) 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.
41st EDPB Meeting
November 17th, 2020 | Posted by in Data Transfer | Europe | Privacy - (0 Comments) - Adoption of the minutes and of the agenda, Information given by the Chair
- Minutes of the 40th EDPB meeting
- Draft agenda of the 41st EDPB meeting
- Current Focus of the EDPB Members
- Art. 65 ongoing procedure
- Draft Art. 65 Decision
- FOR DISCUSSION AND/OR ADOPTION – Expert Subgroups and Secretariat
- Recommendation on measures that supplement transfer instruments to ensure compliance with the EU level of protection of personal data
- Update of the European Essential Guarantees recommendations
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