Individuals having difficulties in obtaining responses to their personal data subject access requests (DSAR) from French telephone operator Free Mobile filed several complaints before the Frenchdata protection authority (CNIL). These requests related to accessing their personal data and objecting to receiving direct marketing messages by electronic means. After its investigations, the CNIL imposed a fine of €300,000 against Free Mobile on 28 December 2021.(more…)
‘Specialist in new technologies’, K&L Gates LLP‘s team has an outstanding reputation for legal advice on innovative technologies and data-related concerns. Claude-Etienne Armingaud and Raphael Bloch are recognised as ‘exceptional lawyers who miss no details and who know their fields to perfection’. Claude-Etienne Armingaud has developed particular knowledge of multijurisdictional transactional matters dealing with IT outsourcing and data protection for blockchain and fintech, connected cars, and big data services.
Leading individuals: Claude-Etienne Armingaud – K&L Gates LLP
Practice head(s): Claude-Etienne Armingaud
Other key lawyers: Raphael Bloch(more…)
Transfer from the UK
On 21 March 2022, the United Kingdom finalized the adoption of its own version of the European Union’s (EU) Standard Contractual Clauses (SCC), a contractual mechanism aiming at securing personal data protected under a data protection framework to third countries not deemed to offer an “adequate” level of data protection.
On 16 July 2020, while the United Kingdom was still an EU Member State, the European Court of Justice (CJEU), through its Schrems II decision, added new requirements to the SCC (see our Alert here), relating to safeguards against access to personal data protected under EU’s General Data Protection Regulation (GDPR) by intelligence agencies. As a consequence, the European Union adopted new versions of the SCC in June 2021 (see our Alert here), but the United Kingdom having finalized Brexit in the meantime, did not adopt the new SCCs, instead operating the previous versions of the SCC, and an updated document for transfers initiated under the UK GDPR was needed.
The UK’s draft International Data Transfer Agreement (IDTA) and Addendum were laid before Parliament on 22 February 2022 and finally adopted on 21 March 2022 without changes. The IDTA is an equivalent contract to the SCC, but uses a tabular approach in place of the modules used by the SCC. The alternative instrument that was introduced, the Addendum, provides UK data exporters with a semi-seamless mechanism where they can leverage their existing SCC for transfers initiated under the EU GDPR. The Addendum consists of a form effectively selecting the relevant options of the SCC and amending EU terminology and legal references to UK-specific ones. It is likely to be more widely used than the IDTA, particularly as data exporters with operations in both the UK and the EU will look to reduce the number of contracts they need to enter into. Overall, the IDTA and the Addendum represent a narrowing in the divergence that had appeared recently in the differing safeguards required by the UK and the EU for data exporters engaged in personal data transfers from their respective jurisdictions.
As a reminder:
- Transfers between the EU and the UK do not need any specific measures as per the adequacy decision currently in place (see our Alert here)
- all data transfer agreements under the EU GDPR based on the previous versions of the SCC will need to be migrated to the new SCC on or before 27 December 2022; and
- all data transfer agreements under the UK GDPR executed on or before 21 September 2022 on the basis of any Transitional Standard Clauses (based on the previous versions of the SCC) will need to be migrated to an IDTA or Addendum on or before 21 March 2024.
Transfer from the EU to the US: En Route for Schrems III?
On 25 March 2022, European Commission President Ursula von der Leyen and United States President Joe Biden announced an “agreement in principle” on a new EU-US data sharing system, expected to replace the Privacy Shield framework invalidated under the CJEU’s Schrems II decision in 2020 (see our Alert here).
As no draft of that “agreement” has been circulated, the existing grievances against U.S. intelligence agencies’ access to personal data protected under GDPR remain and concerns relating to ‘effective legal remedies’ available to individuals protected under GDPR (Data Subjects) will need to be addressed. Data activist Maximilian Schrems and his organization, noyb, already announced that they would closely monitor the development of this new framework and challenge any decision which would not abide by the CJEU’s 2020 Schrems II decision.
While such a political statement is encouraging for the future of international data transfers, this announcement should not be construed as relieving companies subject to GDPR’s territorial scope (see our Alert here) from implementing adequate data transfer mechanisms until more concrete elements are adopted.
Such transfer mechanisms notably include:
- A transfer impact assessment (TIA), analyzing the regulatory framework applicable to the destination country and any supplemental technical and organizational measures to be implemented to safeguard the transferred personal data from undue access;
- Implementation of a transfer mechanism, such as the SCC (see above) or adhesion to Binding Corporate Rules, or to a Code of Conduct (see our Alert here).
Quoted by Global Data Review:
Claude-Étienne Armingaud, a partner at K&L Gates in Paris, said the decision would have little impact in practice.
“The new sections adopted in July 2021 are implementing specific and targeted data retention requirements which should therefore comply with both the ECJ decisions and the Constitutional Council decision of today,” he said.
“So, if anything, it’s a tardy decision that was expected and confirmation that the Government did well to anticipate this.”
Read full article here.
During his January 2022 hearing before France’s National Assembly, the newly appointed chairman of the French competition authority (AdlC), Benoit Coeuré, stated that the digital sector would be one of the principal subject matters of his chairmanship (see press release here in English).
His intention is to focus on “the emergence of new essential infrastructures such as cloud-computing” and that, in consequence, “it would be important and justified for the AdlC to rapidly undertake in-depth work on the consequences of cloud-computing in all sectors in conjunction with the relevant sectoral authorities.”
Pursuant to Article L. 462-4 of the French Commercial Code, the AdlC has therefore decided to conduct a wide analysis of the matter in order to assess the competitive situation of the cloud-computing ecosystem.
A BOOMING SECTOR
This opinion comes at a time when the cloud-computing market is booming at both the European and French level, with an average annual growth expected to exceed 25% over the next few years, with strong value-creation challenges for the economy, and allowing for a 2030 market prediction 10 times larger than in 2020.
Over the last few years, cloud computing has become a complex ecosystem of technologies, products, and services, giving rise to a wealthy economy where several cloud-computing service providers compete for an ever-increasing share of the service market. This peaking sector allows for more efficient ways of working, which has ended up being especially valuable during the COVID-19 pandemic.
This “cloud boom” also serves as the backbone of a widespread digitalization of the economy, which is supported by the French government with its new national plan to support the French cloud industry.
THE NECESSITY FOR GLOBAL ANALYSIS
The AdlC’s purpose to conduct a broad analysis of the cloud-computing sector is pushed by both a European and international dynamic.
In this regard, the AdlC intends to provide for a definition of the relevant markets in the sector.
This commitment can be traced back to the European Commission’s (EU Commission) early analysis of the “IT outsourcing services” market encompassing the “public cloud computing services” as one of its sub-segments.1 Concurrently and from a transatlantic perspective, the U.S. Federal Trade Commission is also pushing forward with an antitrust scrutiny in the cloud-computing business.
The AdlC intends to study the competitive dynamics of the sector and the presence of operators in the various segments of the value chain (including their contractual relations) in a context where multiple alliances and partnerships are concluded for the provision of cloud services.
Should the AdlC identify potential improvements, proposals may be issued for the competitive functioning of the sector.
Taking into account the variety and complexity of the cloud-computing technologies involved, the AdlC announced that, for the first time, the investigation unit will comprise lawyers, economists, and data scientists notably from the newly created Digital Economy Department.
THE NEXT STEPS
A broad public consultation will be taking place in the next few months to gather comments and suggestions from the stakeholders. Comments are to be sent to the AdlC through the following email address: firstname.lastname@example.org.
The final opinion is expected to be issued by the beginning of 2023.
The firm’s global competition and data protection team (including the competition team and data protection team in each of our European offices) remains available to assist you in achieving the compliance of your data and antitrust matters at global levels.
Claude-Etienne Armingaud from K&L Gates ranked among the Best Lawyers France 2021 for Privacy and Data Security Law
Source: Best Lawyers
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.(more…)
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…)