Privacy & Information Security Law Blog

On January 16, 2020, the Federal Trade Commission announced that settlements with five companies of separate allegations that they had falsely claimed certification under the EU-U.S. Privacy Shield framework had been finalized.

On January 14, 2020, the French Data Protection Authority (the “CNIL”) published its draft recommendations on the practical modalities for obtaining users’ consent to store or read non-essential cookies and similar technologies on their devices (the “Recommendations”). The CNIL also published a set of questions and answers on the Recommendations (“FAQs”).

2019 was the “Year of the CCPA” as companies around the world worked tirelessly to comply with the California Consumer Privacy Act of 2018 (“CCPA”). The CCPA aims to provide data privacy rights for California residents and imposes significant new requirements on covered businesses.

On December 12, 2019, the Belgian Data Protection Authority (the “Belgian DPA”) released its draft 2019-2025 Strategic Plan (the “Draft Plan”). In the Draft Plan, the Belgian DPA describes its vision for the years to come, defines its priorities and strategic objectives and lists the necessary means to achieve its objectives.

On December 19, 2019, the members of the Permanent Representations of EU Member States to the Council of the European Union (“the Council”) published a draft position on the application of the General Data Protection Regulation (“GDPR”). After the draft position has been formally adopted by the Council, it will be provided to the European Commission. This is part of the GDPR evaluation process under Article 97 of the GDPR, which requires the European Commission to publish a report on the evaluation and review of the GDPR by May 25, 2020.

On December 19, 2019, the Advocate General of the Court of Justice of the European Union (the “CJEU”) handed down his opinion in the so-called “Schrems II” case (case C-311/18). He recommended that the CJEU uphold the validity of the Standard Contractual Clauses (“SCCs”) as a mechanism for transferring personal data outside of the EU. Given that SCCs are the key data transfer mechanism used by many organizations to transfer personal data outside of the EU, the opinion has far-reaching repercussions and will be welcomed by businesses across the globe.

On December 10, 2019, the French Data Protection Authority (the “CNIL”) published the final version of its standard (“Referential”) concerning the processing of personal data in the context of whistleblowing hotlines. The Referential on whistleblowing hotlines was adopted following a public consultation launched by the CNIL on April 11, 2019. It replaces the CNIL’s Single Authorization AU-004 decision regarding such data processing, and anticipates certain changes introduced by the EU Directive on the protection of whistleblowers (Directive (EU) 2019/1937 of October 23, 2019), which EU Member States will have to implement into their national laws by December 17, 2021. The CNIL also published a set of questions and answers (“FAQs”), which aim to answer some practical questions that the CNIL are regularly asked regarding the operation of a whistleblowing hotline.

On December 11, 2019, the European Data Protection Board (“EDPB”) published its draft guidelines 5/2019 (the “Guidelines”) on the criteria of the right to be forgotten in search engine cases under the EU General Data Protection Regulation (“GDPR”). The Guidelines aim to provide guidance on: (1) the grounds on which individuals can rely for submitting a request for the right to be forgotten in relation to links to web pages containing their personal data; and (2) the exceptions to the right to be forgotten that search engine operators could use to reject such a request. The Guidelines will be supplemented by an appendix on the assessment of criteria for the handling of individuals’ complaints by EU data protection authorities following the refusal by search engine operators to grant the individuals’ request.

On December 10, 2019, the Dutch Data Protection Authority (Autoriteit Persoonsgegevens, the “Dutch DPA”) published a statement regarding compliance with the rules on cookie consent (the “Statement”).

On December 6, 2019, the Federal Trade Commission announced its Final Order and Opinion in the matter of Cambridge Analytica, LLC, finding that Cambridge Analytica violated the FTC Act’s Section 5 prohibition against “unfair or deceptive acts or practices” when harvesting personal information through its “GSRApp” Facebook application.

On December 3, 2019, the Federal Trade Commission announced that it had reached settlements in four separate Privacy Shield cases. Specifically, the FTC alleged that Click Labs, Inc., Incentive Services, Inc., Global Data Vault, LLC, and TDARX, Inc. each falsely claimed to participate in the EU-U.S. Privacy Shield framework. The FTC also alleged that Click Labs and Incentive Services falsely claimed to participate in the Swiss-U.S. Privacy Shield framework and that Global Data and TDARX continued to claim participation in the EU-U.S. Privacy Shield after their Privacy Shield certifications lapsed. The complaints further alleged that Global Data and TDARX failed to comply with the Privacy Shield framework, including by failing to (1) verify annually that statements about their Privacy Shield practices were accurate, and (2) affirm that they would continue to apply Privacy Shield protections to personal information collected while participating in the program.

On November 26, 2019, the French Data Protection Authority (the “CNIL”) announced that it had levied a fine of €500,000 on Futura Internationale, a French SME specializing in thermal insulation of private buildings, for various infringements of the EU General Data Protection Regulation (“GDPR”). The infringements related to the company’s direct marketing voice-to-voice calls include failure to (1) comply with the individuals’ objection to the processing of their personal data for direct marketing; (2) process only relevant personal data (by recording excessive comments in the CRM software); (3) provide sufficient notice regarding the recording of phone calls and data processing;  (4) cooperate with the CNIL; and (5) implement appropriate data transfer mechanisms for the data transfers to non-EU call center providers.

At its 15th plenary meeting, the European Data Protection Board (“EDPB”) adopted the final guidelines on the territorial scope of the EU General Data Protection Regulation (“GDPR”) (the “Guidelines”), taking into account the feedback it received during the public consultation of its draft guidelines published on November 23, 2018.

On November 26, 2019, the European Data Protection Supervisor’s office (“EDPS”) and the European Parliament announced that Wojciech Wiewiórowski, currently Assistant Supervisor and acting replacement for the European Data Protection Supervisor Giovanni Buttarelli, will officially be the new European Data Protection Supervisor for the new term of office. The Committee of the Permanent Representatives of the Governments of Member States to the European Union (“COREPER”) and the Committee on Civil Liberties, Justice and Home Affairs of the European Parliament (“LIBE”) confirmed Wojciech Wiewiórowski for a 5-year mandate as European Data Protection Supervisor. In the following days, the European Parliament and Council of the European Union will proceed to formally appoint Wojciech Wiewiórowski as the new European Data Protection Supervisor. Wojciech Wiewiórowski has served as Assistant Supervisor since December 2014. Earlier in his career, Wojciech Wiewiórowski was the Inspector General for the Protection of Personal Data at the Polish Data Protection Authority.

On November 13, 2019, the European Data Protection Board (“EDPB”) published its draft guidelines 4/2019 (the “Guidelines”) on the obligation of Data Protection by Design and by Default (“DPbDD”) set out under Article 25 of the EU General Data Protection Regulation (“GDPR”).

On November 19, 2019, the Federal Trade Commission announced that Medable, Inc. (“Medable”) agreed to settle allegations that the company had misrepresented its participation in the EU-U.S. Privacy Shield program. The FTC alleged that, from December 2017 to October 2018, Medable falsely claimed in its online privacy policy that it was a certified participant in the EU-U.S. Privacy Shield framework and adhered to the framework’s principles. According to the complaint, although Medable did initiate an application with the Department of Commerce in December 2017, the company never completed the steps necessary to participate in the framework.

On November 13, 2019, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth issued a discussion paper on “Organizational Accountability in Light of FTC Consent Orders” (the “Discussion Paper”). The Discussion Paper examines the recent $5 billion FTC settlement with Facebook, which resulted from Facebook’s alleged violation of a prior 2012 FTC consent order, and the recent $575 million FTC settlement with Equifax, related to its 2017 data breach.

On November 18, 2019, Hunton Andrews Kurth will host a networking luncheon in the firm’s Brussels office. The luncheon will feature Isabelle Vereecken, Head of the Secretariat of the European Data Protection Board ("EDPB"), and will focus on the role of the EDPB and cooperation between supervisory authorities ("SAs") in cross-border matters.

The European Data Protection Board recently published on its website that the Austrian Data Protection Authority (“Austrian DPA”) imposed an €18 million fine (approximately $20 million) on the Austrian Postal Service, Österreichische Post AG (“ÖPAG”), for various violations of the EU General Data Protection Regulation (“GDPR”). After conducting an investigation, the Austrian DPA established that ÖPAG unlawfully processed and sold data with respect to its customers’ alleged political affinities. Another GDPR violation was related to the ÖPAG’s ...

On November 5, 2019, the Berlin Commissioner for Data Protection and Freedom of Information (“the Berlin Commissioner,” Berliner Beauftragte für Datenschutz und Informationsfreiheit) announced that it had imposed a fine of €14.5 million (approximately $16 million) on Deutsche Wohnen SE, a prominent real estate company. This is the highest fine issued in Germany since the EU General Data Protection Regulation (“GDPR”) became applicable.

On October 22, 2019, the French Data Protection Authority (the “CNIL”) published a list of processing operations (in French) that it considers not requiring a data protection impact assessment (“DPIA”). The CNIL had previously adopted and published a final list of processing operations requiring a DPIA on November 6, 2018. The final list includes 12 types of processing operations for which a DPIA is not considered mandatory. The CNIL provided concrete examples for each type of processing operation, including:

On October 4, 2019, the Presidency of the European Council published its revised text (the “Revised Draft”) of the Proposal for a Regulation Concerning the Respect for Private Life and the Protection of Personal Data in Electronic Communications (the “Draft ePrivacy Regulation”). The Revised Draft was released in preparation for the Working Party on Telecommunications and Information Society’s meeting, which took place on October 11, 2019 (the “WP Tele”) and introduces limited amendments compared to the draft amendments proposed by the Presidency of the European Council last month.

On September 17, 2019, the German Conference of Data Protection Authorities (Datenschutzkonferenz, (“DSK”) examined a proposal for calculating administrative fines under the EU General Data Protection Regulation (“GDPR”).  The press release of the DSK states that this initiative aims to ensure a calculation of fines against violations of the GDPR that is “systematic, transparent and understandable.” However, the press release refrains from describing the criteria of the fining model officially, as the fining model has not yet been adopted by the DSK.

On October 2, 2019, the UK Court of Appeal handed down its judgment on the appeal in Richard Lloyd v. Google LLC, in which Richard Lloyd, a consumer protection advocate, seeks to bring a representative action on behalf of four million Apple iPhone users against Google LLC in the United States. Previously, the High Court had refused to grant permission for the proceedings to be served outside the UK. The Court of Appeal reversed the High Court’s judgment, granting permission for service outside the UK and allowing the representative action to proceed. The judgment is significant as it paves the way for representative actions (equivalent to class actions) for data protection infringements in the UK.

On October 15, 2019, Hunton Andrews Kurth will host a luncheon seminar in our Brussels office on Addressing GDPR Challenges: An Interactive Session on Handling Data Breaches. In this roundtable discussion, our speakers will lead a dialogue to share experiences on handling data breaches under the EU General Data Protection Regulation (“GDPR”).

On October 1, 2019, the Court of Justice of the European Union (“CJEU”) issued its decision in an important case involving consent for the use of cookies by a German business called Planet49. Importantly, the Court held that (1) consent for cookies cannot be lawfully established through the use of pre-ticked boxes, and (2) any consent obtained regarding cookies cannot be sufficiently informed in compliance with applicable law if the user cannot reasonably comprehend how the cookies employed on a given website will function.

On September 17, 2019, the Belgian Data Protection Authority (the “Belgian DPA”) imposed a fine of EUR 10,000 on a shop for the disproportionate use of customers’ electronic identity cards (the “eIDs ”) – a national identification card.

On September 24, 2019, the Court of Justice of the European Union (the “CJEU”) released its judgments in cases C-507/17, Google v. CNIL and C-136/17, G.C. and Others v. CNIL regarding (1) the territorial scope of the right to be forgotten, referred to in the judgement as the “right to de-referencing,” and (2) the conditions in which individuals may exercise the right to be forgotten in relation to links to web pages containing sensitive data. The Court’s analysis considered both the EU Data Protection Directive and the EU General Data Protection Regulation (“GDPR”).

On September 9, 2019, the Dutch Data Protection Authority (Autoriteit Persoonsgegevens, the “Dutch DPA”) published a report on the privacy complaints it received between January 2019 and June 2019 (the “Report”).

On September 18, 2019, the Presidency of the European Council published its proposed amendments to the Proposal for a Regulation Concerning the Respect for Private Life and the Protection of Personal Data in Electronic Communications (the “Draft ePrivacy Regulation”). The Draft ePrivacy Regulation will replace the ePrivacy Directive and will complete the EU’s framework for data protection and confidentiality of electronic communications.

On September 10, 2019, the French data protection authority (the “CNIL”) updated its existing set of questions and answers (“FAQs”) on the impact of a no-deal Brexit on data transfers from the EU to the UK and how controllers should prepare.

On September 6, 2019, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth LLP submitted formal comments to the European Data Protection Board (the “EDPB”) on its draft guidelines on processing of personal data through video devices (the “Guidelines”). The Guidelines were adopted on July 10, 2019, for public consultation.

On September 4, 2019, the High Court of England and Wales dismissed a challenge to South Wales Police’s use of Automated Facial Recognition technology (“AFR”). The Court determined that the police’s use of AFR had been necessary and proportionate to achieve their statutory obligations.

The Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth LLP is pleased to announce Matthew Starr and Giovanna Carloni have joined CIPL, adding to its expertise in global privacy and data protection policy.

On August 21, 2019, the Belgian Data Protection Authority (the “Belgian DPA”) published a press release informing of its intention to further investigate a data breach that was notified by Adecco Belgium, a temporary employment agency. The data breach affected thousands of biometric data, including fingerprints and images allowing facial recognition, and was suffered by the company Suprema. The compromised data included approximately 2,000 fingerprints of Adecco Belgium’s employees.

On August 21, 2019, the Swedish Data Protection Authority (the “Swedish DPA”) imposed its first fine since the EU General Data Protection Regulation (“GDPR”) came into effect in May, 2018. The Swedish DPA fined a school 200,000 Swedish Kroner for creating a facial recognition program in violation of the GDPR.

On August 15, 2019, the UK Information Commissioner’s Office (“ICO”) announced that it had launched an investigation into the use of live facial recognition technology at the King’s Cross development in London. This follows a letter sent by the mayor of London, Sadiq Khan, to the owner of the development inquiring as to whether the use of the software was legal. The company responsible for the technology said it was used for the purposes of public safety.

On August 15, 2019, the UK Information Commissioner’s Office updated its guidance on the timescale for responding to data subject access requests under the EU General Data Protection Regulation, following a ruling of the Court of Justice of the European Union . The guidance now states that the time limit should be calculated from the day that the request is received, whether or not it is a working day. For example, if a request is received on September 3, the time limit will commence on that date and the response should be provided to the data subject by October 3 ...

On August 12, 2019, the Dutch Data Protection Authority (Autoriteit Persoonsgegevens, the “Dutch DPA”) announced its intent to approve Nederland ICT’s Data Pro Code (the “Code”), a code of conduct for the ICT sector. Nederland ICT represents data processors from the IT sector. Data processors that process personal data on behalf of and for a data controller can join this code of conduct. The draft decision of the Dutch DPA regarding the Code was published in the Official Journal of the Netherlands (the “Staatscourant”) on August 12 and interested parties have six weeks to submit their opinion on the draft decision.

On August 7, 2019, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth LLP issued a white paper titled Key Issues Relating to Standard Contractual Clauses for International Transfers and the Way Forward for New Standard Contractual Clauses under the GDPR (the “White Paper”). The White Paper was submitted to the European Commission as part of its ongoing work to update EU Standard Contractual Clauses for international transfers (“SCCs”).

On July 29, 2019, the Court of Justice of the European Union (the “CJEU”) released its judgment in case C-40/17, Fashion ID GmbH & Co. KG vs. Verbraucherzentrale NRW eV. The Higher Regional Court of Düsseldorf (Oberlandesgericht Düsseldorf) requested a preliminary ruling from the CJEU on several provisions of the former EU Data Protection Directive of 1995, which was still applicable to the case since the court proceedings had started before the implementation of the EU General Data Protection Regulation (“GDPR”).

On July 29, 2019, the UK Information Commissioner’s Office (“ICO”) announced the 10 projects that it has selected, out of 64 applicants, to participate in its sandbox. The sandbox, for which applications opened in April 2019, is designed to support organizations in developing innovative products and services with a clear public benefit. The ICO aims to assist the 10 organizations in ensuring that the risks associated with the projects’ use of personal data is mitigated. The selected participants cover a number of sectors, including travel, health, crime, housing and artificial intelligence.

On July 25, 2019, the French Data Protection Authority (the “CNIL”) published new template records of data processing activities pursuant to Article 30 of the EU General Data Protection Regulation (“GDPR”). This provision requires organizations subject to the GDPR to maintain internal records of data processing activities. The CNIL recalled that such records are a key accountability tool under the GDPR for identifying, understanding and controlling data processing activities. Setting up and maintaining these records provide businesses with the opportunity to ask the right questions and limit privacy risks under the GDPR. According to the CNIL, this is also a useful moment to set up a data protection compliance action plan.

The European Data Protection Board (the “EDPB”) recently adopted its Guidelines 3/2019 on processing of personal data through video devices (the “Guidelines”). Although the Guidelines provide examples of data processing for video surveillance, these examples are not exhaustive. The Guidelines aim to provide guidance on how to apply the EU General Data Protection Regulation (“GDPR”) in all potential areas of video device use.

On July 16, 2019, the European Data Protection Board (the “EDPB”) published its Annual Report for 2018 (the “Report”). The Report highlights that the EDPB (1) endorsed 16 guidelines previously adopted by the Article 29 Working Party; (2) adopted four additional guidelines to clarify provisions of the GDPR; (3) adopted 26 consistency opinions to guarantee the consistent application of the EU General Data Protection Regulation (“GDPR”) by the EU data protection authorities; and (4) issued two opinions in the context of the legislative consultation process, as well as a statement on its own initiative and on the draft ePrivacy Regulation.

On July 18, 2019, the French Data Protection Authority (the “CNIL”) published new guidelines on cookies and similar technologies (the “Guidelines”). As announced by the CNIL in its action plan on targeted advertising for 2019-2020, its 2013 cookie guidance is no longer valid in light of the strengthened consent requirements of the EU General Data Protection Regulation (“GDPR”). The Guidelines therefore repeal the CNIL’s 2013 recommendations on cookies and reconceive the rules applicable to the use of cookies and similar technologies in France, as they take shape from (1) the provisions of the EU ePrivacy Directive as implemented under French law, and (2) the GDPR consent requirements.

On July 16, 2019, the Dutch Data Protection Authority (Autoriteit Persoonsgegevens, the “Dutch DPA”), announced that it had imposed a fine of €460,000 on a Dutch hospital, HagaZiekenhuis, for insufficient security measures under Article 32 of the EU General Data Protection Regulation (“GDPR”).

The UK Information Commissioner’s Office (“ICO”) published its 2018-19 Annual Report on July 9, 2019. This is the first Annual Report published by the ICO since the EU General Data Protection Regulation (“GDPR”) took effect on May 25, 2018.

The Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth LLP recently published a Q&A document on organizational accountability in data protection (the “Q&A”).

While CIPL has written extensively about the concept of organizational accountability over many years, the Q&A is designed to clarify frequently raised questions about accountability and provide greater context and understanding of the concept, including for law and policy makers considering data privacy legislation around the globe.

On July 9, 2019, the European Data Protection Board (the “EDPB”) adopted Opinion 8/2019 on the Competence of a Supervisory Authority in Case of a Change in Circumstances Relating to the Main or Single Establishment (the “Opinion”) at the request of the French and the Swedish data protection authorities (“DPAs”).

Background – The French and Swedish DPAs’ Initial Request

Simon McDougall, Executive Director for Technology Policy and Innovation for the UK Information Commissioner’s Office (“ICO”), has stated that “change is needed” in the adtech sector. In a speech delivered on July 11, 2019, at the Westminster Media Forum, focusing on the future of online advertising regulation, McDougall commented that “heads are still firmly in the sand” in some pockets of the digital advertising industry, and that many real-time bidding practices are currently being conducted in an unlawful manner, whether or not industry players are aware of it.

On July 9, 2019, the hearing in the so-called Schrems II case (case C-311/18) took place at the Court of Justice of the European Union (“CJEU”) in Luxembourg. The main parties involved in the proceedings, the Irish Data Protection Commissioner (“Irish DPA”), Facebook Ireland Ltd. and the Austrian activist Max Schrems, presented their arguments to the court. In addition, a number of other stakeholders intervened during the hearing, including representatives of the European Parliament, the European Commission, the European Data Protection Board, several EU Member States (including Austria, France, Germany, Ireland, the Netherlands and the UK) and the U.S. government, as well as a number of industry lobby groups and the Electronic Privacy Information Center.

On July 4, 2019, the European Commission published a factsheet on artificial intelligence (“AI”) for Europe (the “Factsheet”). In the Factsheet, the European Commission underlines the importance of AI and its role in improving people’s lives and bringing major benefits to the society and economy. In addition, the Factsheet also describes the EU’s role in AI and the financial investments the Commission is planning to make in AI. The factsheet also includes some examples of projects conducted by the Commission in AI (including in agriculture, data and eHealth, public administration and services, and transport and manufacturing).

On July 9, 2019, the UK Information Commissioner’s Office (“ICO”) announced its intention to fine Marriott International, Inc. (“Marriott”) £99,200,396 (approximately $124 million) for infringements of the EU General Data Protection Regulation (“GDPR”). The ICO’s announcement followed Marriott’s notification of the proposed fine to the U.S. Securities and Exchange Commission (“SEC”).

On July 1, 2019, the Dutch Data Protection Authority (Autoriteit Persoonsgegevens, (the “Dutch DPA”)) announced that it had expanded its guidance on data breaches. The updates aim to answer questions about data breaches received by the Dutch DPA from organizations since 2016.

On July 8, 2019, the UK Information Commissioner’s Office (“ICO”) announced that it intends to fine British Airways (“BA”), which is owned by International Consolidated Airlines Group, S.A., £183,390,000 (approximately $230,000,000) for violating the EU General Data Protection Regulation (“GDPR”). This is the first fine to be announced publicly by the ICO under the GDPR and hints at the tough stance it is likely to take with regard to future breaches.

On June 28, 2019, the French data protection authority (the “CNIL”) published its action plan for 2019-2020 to specify the rules applicable to online targeted advertising and to support businesses in their compliance efforts.

The UK Information Commissioner’s Office (“ICO”) recently published an updated report on adtech, following a Fact Finding Forum held in March 2019 and consultation with industry players. The report focuses on whether and how organizations in the adtech sector can comply with the EU General Data Protection Regulation (“GDPR”) and the UK’s implementation of the e-Privacy Directive, known as the Privacy and Electronic Communications Regulations (“PECR”).

The European Data Protection Board (the “EDPB”) recently adopted its Guidelines 1/2019 on Codes of Conduct and Monitoring Bodies under Regulation 2016/679 (the “Guidelines”). The Guidelines aim to provide practical guidance with respect to Articles 40 and 41 of the EU General Data Protection Regulation (“GDPR”). In particular, the Guidelines intend to clarify the rules and procedures for the submission, approval and publication of codes of conduct.

To mark the GDPR’s one-year anniversary, the European Commission recently published the results of two surveys meant to illuminate the public’s awareness of the GDPR and its practical applications.

On June 20, 2019, the Senate confirmed Keith Krach as Under Secretary of State for Economic Growth, Energy, and Environment. The former DocuSign and Ariba CEO, nominated by President Trump in January of 2019, will function as the permanent ombudsperson for the EU-U.S. Privacy Shield agreement as part of his role, addressing complaints related to U.S. protection of EU data.

On June 14, 2019, the Federal Trade Commission announced that it has taken action against a number of companies that allegedly misrepresented their compliance with the EU-U.S. and Swiss-U.S. Privacy Shield frameworks (collectively, the “Privacy Shield”) and other international privacy agreements.

On June 12, 2019, the Belgian Data Protection Authority (the “Belgian DPA”) launched a public consultation on direct marketing with a view to updating its Recommendation No. 02/2013 of January 30, 2013 on direct marketing (the “Direct Marketing Recommendation”).

On June 12, 2019, Hunton Andrews Kurth and its Centre for Information Policy Leadership (“CIPL”) hosted a roundtable discussion in the firm’s Brussels office on the update of the EU Standard Contractual Clauses for international data transfers (“SCCs”). More than 30 privacy leaders joined together to discuss the challenges of the current SCCs and provide their insights on the updated versions. Hunton partner David Dumont led the discussion, while CIPL President Bojana Bellamy illuminated CIPL’s work in this area. The session also featured Cristina Monti, Policy Officer in the International Data Flows and Protection Unit of the EU Commission DG Justice and Consumers.

On June 1, 2019, New Decree No. 2019-536 (the “Implementing Decree”) took force, enabling the French Data Protection Act, as amended by an Ordinance of December 12, 2018, likewise to enter into force. This marks the completion of the adaption of French law to the EU General Data Protection Regulation (“GDPR”) and the EU Police and Criminal Justice Directive (Directive (EU) 2016/680).

On May 30, 2019, the UK Information Commissioner’s Office (“ICO”) published its reflections on the year that has passed since the implementation of the EU General Data Protection Regulation (“GDPR”), together with a blog post by Elizabeth Denham, the UK Information Commissioner.

On June 6, 2019, the French Data Protection Authority (the “CNIL”) announced that it levied a fine of €400,000 on SERGIC, a French real estate service provider, for failure to (1) implement appropriate security measures and (2) define data retention periods for the personal data of unsuccessful rental candidates.

On May 31, 2019, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth LLP issued a white paper on GDPR One Year In: Practitioners Take Stock of the Benefits and Challenges (the “White Paper”). In addition, CIPL submitted the White Paper along with a separate response to the European Commission’s questionnaire to prepare for the June 2019 stocktaking exercise on the application of the EU General Data Protection Regulation (“GDPR”).

On June 12, 2019, Hunton Andrews Kurth and its Centre for Information Policy Leadership (“CIPL”) will host a roundtable discussion in the firm’s Brussels office on the update of the EU Standard Contractual Clauses for international data transfers. The seminar will feature Ms. Cristina Monti, Policy Officer in the International Data Flows and Protection Unit of the EU Commission DG Justice and Consumers. Participants will:

On May 28, 2019, shortly after the appointment of the new Belgian commissioner and the Director of the Litigation Chamber, the Belgian Data Protection Authority (the “Belgian DPA”) imposed its first fine since the EU General Data Protection Regulation ( “GDPR”) came into effect. The Belgian DPA fined a Belgian mayor EUR 2,000 for abusive use of personal data obtained in the context of his mayoral functions for election campaign purposes.

On May 27, 2019, the Irish government announced that Helen Dixon, who currently serves as Irish Data Protection Commissioner, was appointed to a second five-year term in her position. Her reappointment was approved by a May 27 Cabinet vote.

On May 22, 2019, the European Data Protection Board (the “EDPB”) published on its website a summary of enforcement actions taken by the European Economic Area Supervisory Authorities (“EEA Supervisory Authorities”) one year after the entry into force of the General Data Protection Regulation (the “GDPR”). Reflecting on the growing numbers of data controllers designating a lead supervisory authority, the EDPB reported that of the 446 cross-border cases opened by EEA Supervisory Authorities, 205 of these cases have led to One-Stop-Shop procedures. The EDPB ...

At its annual conference, CYBERUK, the National Cyber Security Centre (the “NCSC”), pledged not to pass on confidential information about cyberattacks to the UK Information Commissioner’s Office (the “ICO”) without the consent of the affected organization. This commitment is an attempt to reassure organizations, encouraging them to report and seek assistance in the event of a cybersecurity incident.

The French Data Protection Authority (the “CNIL”) recently published its Annual Activity Report for 2018 (the “Report”) and released its annual inspection program for 2019.

On April 25, 2019, the Belgian Data Protection Authority (the “Belgian DPA”) published its Annual Activity Report for 2018 (the “Annual Report”), highlighting the main developments and accomplishments of the past year.

On April 15, 2019, the UK Information Commissioner’s Office (the “ICO”) issued for public consultation a draft code of practice, “Age Appropriate Design,” that will regulate the provision of online services likely to be accessed by children in the UK. Given the extraterritorial reach of the UK Data Protection Act 2018, organizations based outside of the UK may be subject to the code, which is expected to take effect by the end of 2019. The deadline for responding to the public consultation is May 31, 2019.

On April 15, 2019, the Greek Data Protection Authority (“DPA”) fined Hellenic Petroleum S.A. EUR 20,000 for unlawful processing of personal data and EUR 10,000 for failing to adopt appropriate data security measures.

On April 17, 2019, the Dutch Data Protection Authority, the Autoriteit Persoonsgegevens (the “Dutch DPA”) issued six recommendations (in Dutch) for companies, to be taken into account when drafting privacy policies for the purpose of Article 24.2 of the EU General Data Protection Regulation (the “GDPR”). Article 24.2 of the GDPR provides the obligation for data controllers to implement privacy policies for accountability purposes, under certain criteria. The published recommendations follow the Dutch DPA’s investigation of companies’ privacy policies. The investigation focused on companies that process sensitive personal data, including health data and data related to individuals’ political beliefs. Alongside the recommendations, the Dutch DPA released a report (in Dutch) summarizing the investigation’s results.

On October 22, 2018, the UK Court of Appeal upheld the High Court’s decision that VM Morrison Supermarkets PLC (“Morrisons”) was vicariously liable for a data breach caused by a disgruntled former employee, despite Morrisons being cleared of any wrongdoing (VM Morrison Supermarkets PLC v Various Claimants). The case is important, given its potential “floodgate” effect on data breach class action claims in the UK. The Supreme Court has granted Morrisons permission to appeal the judgment on all grounds.

On April 12, 2019, the European Data Protection Board (“EDPB”) published draft guidelines 2/2019 on the processing of personal data in the context of the provision of online services to data subjects (the “Guidelines”).

On April 11, 2019, the French Data Protection Authority (the “CNIL”) launched an online public consultation regarding two new CNIL draft standards (“Referentials”) concerning the processing of personal data for (1) core HR management purposes and (2) the operation of a whistleblowing hotline.

Social media platforms, file hosting sites, discussion forums, messaging services and search engines in the UK are likely to come under increased pressure to monitor and edit online content after the UK Department of Digital, Culture, Media and Sport (“DCMS”) announced in its Online Harms White Paper (the “White Paper”), released this month, proposals for a new regulatory framework to make companies more responsible for users’ online safety. Notably, the White Paper proposes a new duty of care owed to website users, and an independent regulator to oversee compliance.

The European Commission (the “Commission”) has released a long-awaited study on GDPR data protection certification mechanisms (the “Study”). As we previously reported, the Commission announced its intention to look into GDPR certifications in January of 2018.

During the week of April 1, 2019, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth LLP hosted its annual executive retreat in Washington, D.C. (the “Retreat”). During the Retreat, CIPL held a full-day working session on evolving technologies and a new U.S. privacy framework followed by a closed members only half-day roundtable on global privacy trends with special guest Helen Dixon, Data Protection Commissioner of Ireland.

On April 8, 2019, the European Commission High-Level Expert Group (the “HLEG”) on Artificial Intelligence released the final version of its Ethics Guidelines for Trustworthy AI (the “Guidelines”). The Guidelines’ release follows a public consultation process in which the HLEG received over 500 comments on its initial draft version. The Centre for Information Policy Leadership at Hunton Andrews Kurth LLP contributed its own comments during this process.

On March 29, 2019, the UK Information Commissioner’s Office (the “ICO”) announced that it has opened its sandbox beta phase for applications (the “Beta Phase”).

On March 28, 2019, the French data protection authority (“CNIL”) published a “Model Regulation” addressing the use of biometric systems to control access to premises, devices and apps at work. The Model Regulation lays down binding rules for data controllers who are subject to French data protection law and process employee biometric data for such purposes. The CNIL also released a related set of questions and answers (“FAQs”).

The UK Information Commissioner’s Office (“ICO”) has issued a Monetary Penalty Notice to pensions release provider Grove Pensions Solutions Ltd (“Grove”), fining it £40,000 after the company used contact details collected by a third party for its direct marketing campaign. Grove used a specialist third-party marketing agency to send emails on its behalf to mailing lists, negligently failing to obtain valid consent from individuals who received the marketing emails. Despite seeking external advice (including legal advice), the ICO decided that Grove should have known of the risk that its conduct would breach rules on direct marketing, particularly given recent widespread publicity of this issue in the UK. The fine was imposed under the Data Protection Act 1998.

On March 29, 2019, the Belgian House of Representatives appointed a new commissioner and four directors, who will lead the reformed Belgian data protection authority (“DPA”). The appointments follow a vote of the plenary of the Belgian parliament.

On March 12, 2019, the European Parliament (“Parliament”) approved the proposal for a regulation of the European Parliament and of the Council on ENISA, and repealing Regulation (EU) 526/2013, and on Information and Communication Technology cybersecurity certification (collectively, the “Cybersecurity Act”). The Parliament’s approval follows a political agreement between the European Commission, the Parliament and the Council of the European Union (“Council”) reached last December.

The Cybersecurity Act aims to achieve a high level of cybersecurity and cyber resilience, and to promote individuals’ trust in the EU digital single market.

On March 14, 2019, the Dutch Data Protection Authority (Autoriteit Persoonsgegevens, the “Dutch DPA”) published a press release announcing its policy (in Dutch) for calculating administrative fines (the “Policy”).

The Dutch DPA has the power to impose administrative fines for violations of the EU General Data Protection Regulation (“GDPR”), the Dutch law implementing the GDPR, the Police Data Act, the Judicial Data and Criminal Records Act, the Telecommunications Act, the Electronic Identification, Authentication and Trust Services (eIDAS) Regulation and the General Administrative Law Act.

On March 21, 2019, Advocate General Maciej Szpunar (“Advocate General”) of the Court of Justice of the European Union (“CJEU”) issued an Opinion in the Case C-673/17 of Planet49 GmbH v Bundesverband der Verbraucherzentralen und Verbraucherverbände – Verbraucherzentrale Bundesverband e.V. (i.e., the Federation of German Consumer Organizations, the “Bundesverband”), which is currently pending before the CJEU. In the Opinion, the Advocate General provided his views on how to obtain valid consent to the use of cookies in the case.

The UK’s Information Commissioner’s Office (“ICO”) has fined Vote Leave Limited (the UK’s official Brexit campaign) £40,000 for sending almost 200,000 unsolicited texts promoting the aims of the campaign. In an unrelated action, the ICO has carried out searches of a business believed to have been responsible for initiating nuisance telephone calls. The ICO has highlighted nuisance calls, spam texts and unsolicited direct marketing as areas of “significant public concern,” and is increasingly imposing sanctions on businesses that infringe the Privacy and Electronic Communications Regulations 2003 (“PEC Regulations”), which prohibit these practices. In its view, the monetary penalty imposed on Vote Leave should act as a “deterrent against non-compliance, on the part of all persons running businesses currently engaging in these practices.”

On March 12, 2019, the European Data Protection Board (“EDPB”) adopted an opinion on the interplay between the EU Directive on Privacy and Electronic Communications (“the ePrivacy Directive”) and the General Data Protection Regulation (“GDPR”) (the “Opinion”).

On March 8, 2019, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth LLP issued a white paper on Regulatory Sandboxes in Data Protection: Constructive Engagement and Innovative Regulation in Practice (the “White Paper”). The release of the White Paper follows a joint roundtable held by CIPL and senior staff from the UK Information Commissioner’s Office (“ICO”) on February 19, 2019. Over 35 CIPL members attended the full-day roundtable, exchanging views on how the regulatory sandbox should work in practice, discussing the benefits of participation and key questions around appropriate safeguards upon entering and exiting the sandbox, as well as sharing examples of innovative projects where a sandbox may be useful.

On March 5, 2019, the Global Privacy Enforcement Network (“GPEN”), a global network of more than 60 data protection authorities (“DPAs”) around the world, published the results of its 2018 intelligence gathering operation on organizations’ data privacy accountability practices (the “Sweep”). On the same date, some participating DPAs released the results of the Sweep exercise carried out in their respective jurisdiction.

On February 26, 2019, the European Data Protection Board (the “EDPB”) presented its first overview of the GDPR’s implementation and the roles and means of the national supervisory authorities to the European Parliament (the “Overview”).

The Overview provides key statistics relating to the consistency mechanism among national data protection authorities (“DPAs”), the cooperation mechanism of the EDPB, the means and powers of the DPAs and enforcement of the GDPR at the national level.

During the week of February 25, 2019, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth LLP participated in the meetings of the APEC Data Privacy Subgroup (“DPS”) and Electronic Commerce Steering Group (“ECSG”) in Santiago, Chile. CIPL enjoys formal guest status and a seat at the table at these bi-annual APEC privacy meetings.

On February 25, 2019, the European Data Protection Board (the “EDPB”) issued a statement regarding the transfer of personal data from Europe to the U.S. Internal Revenue Service (the “IRS”) for purposes of the U.S. Foreign Account Tax Compliance Act (“FATCA”).

Enacted in 2010, FATCA requires that foreign financial institutions report information about financial accounts and assets held by their U.S. account holders to the IRS. Such institutions are required to register directly with the IRS to comply with FATCA or comply with intergovernmental agreements signed between the foreign country and the U.S. government. FATCA was designed to combat tax evasion by U.S. persons holding accounts and other financial assets offshore.

The Belgian Data Protection Authority (the “Belgian DPA”) recently published the updated list of the types of processing activities which require a data protection impact assessment (“DPIA”). Article 35.4 of the EU General Data Protection Regulation (“GDPR”) obligates supervisory authorities (“SAs”) to establish a list of the processing operations that require a DPIA and transmit it to the European Data Protection Board (the “EDPB”).