Privacy & Information Security Law Blog

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”).

On February 20, 2019, the French data protection authority (the “CNIL”) published a set of questions and answers (“FAQs”) indicating the CNIL’s recommendations, and steps that organizations should take, to prepare for a no-deal Brexit. The CNIL’s FAQs build upon guidance the European Data Protection Board (“EDPB”) provided in its Information Note on Data Transfers under the GDPR in the Event of a No-Deal Brexit.

On February 12, 2019, the European Data Protection Board (the “EDPB”) released its work program for 2019 and 2020 (the “Work Program”). Following the EDPB’s endorsement of the Article 29 Working Party guidelines and continued guidance relating to new EU General Data Protection Regulation (“GDPR”) concepts, the EDPB plans to shift its focus to more specialized areas and technologies.

At its plenary meeting on February 13, 2019, in Brussels, the European Data Protection Board (“EDPB”) adopted an Information Note on Data Transfers under the GDPR in the Event of a No-Deal Brexit, and an Information Note on BCRs for Companies Which Have ICO as BCR Lead Supervisory Authority.

The European Commission has issued an EU-wide recall of the Safe-KID-One children’s smartwatch marketed by ENOX Group over concerns that the device leaves data such as location history, phone and serial numbers vulnerable to hacking and alteration. The watch is equipped with GPS, a microphone and speaker, and has a companion app that grants parents oversight of the child wearer. According to a February 1, 2019 alert posted on the EU's recall and notification index for nonfood products, flaws in the product could permit malicious users to send commands to any Safe-KID-One watch ...

On January 23, 2019, the European Data Protection Board (“EDPB”) released an opinion on the interplay between the European Clinical Trials Regulation (“CTR”) and the EU General Data Protection Regulation (“GDPR”) (the “Opinion”). The Opinion was requested by the European Commission Directorate-General for Health and Food Safety (“DG SANTE”).

On January 25, 2019, the European Commission (the “Commission”) issued an infographic on compliance with and enforcement and awareness of the EU General Data Protection Regulation (“GDPR”) since the GDPR took force on May 25, 2018. The infographic revealed that:

On January 29, 2019, the Dutch Data Protection Authority (Autoriteit Persoonsgegevens, the “Dutch DPA”) published a report (in Dutch) on the personal data breach notifications received in 2018 (the “Report”). The EU General Data Protection Regulation (the “GDPR”) requires data controllers to notify a personal data breach to the competent Data Protection Authority (“DPA”) within 72 hours after becoming aware of it. In the Netherlands, this breach notification requirement has been in place since January 1, 2016. However, the GDPR imposed additional requirements, including: providing certain information in a breach notification; data controllers’ mandatory obligation to notify affected individuals if the breach is likely to result in a high risk to the rights and freedoms of those individuals; companies duty to document any personal data breaches.

In January 2019, Hunton Andrews Kurth celebrates the 10-year anniversary of our award-winning Privacy and Information Security Law Blog. Over the past decade, we have worked hard to provide timely, cutting-edge updates on the ever-evolving global privacy and cybersecurity legal landscape. Ten Years Strong: A Decade of Privacy and Cybersecurity Insights is a compilation of our blog’s top ten most read posts over the decade, and addresses some of the most transformative changes in the privacy and cybersecurity field.

Read Ten Years Strong: A Decade of Privacy and Cybersecurity ...

On January 22, 2019, the European Data Protection Board (“EDPB”) issued a report on the Second Annual Review of the EU-U.S. Privacy Shield (the “Report”). Although not binding on EU or U.S. authorities, the Report provides guidance to regulators in both jurisdictions regarding implementation of the Privacy Shield and highlights the EDPB’s ongoing concerns with regard to the Privacy Shield. We previously blogged about the European Commission’s report on the second annual review of the Privacy Shield, and the joint statement of the European Commission and Department of Commerce regarding the second annual review.

On January 16, 2019, Hunton Andrews Kurth hosted a breakfast seminar in London, entitled “GDPR: Post Implementation Review.” Bridget Treacy, Aaron Simpson and James Henderson from Hunton Andrews Kurth and Bojana Bellamy from the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth discussed some of the challenges and successes companies encountered in implementing the EU General Data Protection Regulation (the “GDPR”), and also identified key data protection challenges that lie ahead. The Hunton team was joined by Neil Paterson, Group Data Protection Coordinator of TUI Group; Miles Briggs, Data Protection Officer of TUI UK & Ireland; and Vivienne Artz, Chief Privacy Officer at Refinitiv, who provided an in-house perspective on the GDPR.

On December 29, 2018, the UK Information Commissioner’s Office announced that Elizabeth Denham, UK Information Commissioner, was awarded a CBE for her services to protecting information. Denham’s award was announced in the United Kingdom’s 2019 New Year’s Honours list. This honor reflects Denham’s achievements as the UK Information Commissioner and the enhanced leadership, visibility and impact that she has brought to the role and the Office.

The Belgian Data Protection Authority (the “Belgian DPA”) recently published on its website a form to be completed for prior consultation in the context of a data protection impact assessment (“DPIA”).

On January 21, 2019, the French Data Protection Authority (the “CNIL”) imposed a fine of €50 million on Google LLC under the EU General Data Protection Regulation (the “GDPR”) for its alleged failure to (1) provide notice in an easily accessible form, using clear and plain language, when users configure their Android mobile device and create a Google account, and (2) obtain users’ valid consent to process their personal data for ad personalization purposes. The CNIL’s enforcement action was the result of collective actions filed by two not-for-profit associations. This fine against Google is the first fine imposed by the CNIL under the GDPR and the highest fine imposed by a supervisory authority within the EU under the GDPR to date.

On January 18, 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 the territorial scope of the GDPR (the “Guidelines”). The Guidelines were adopted by the EDPB on November 16, 2018, for public consultation.

On January 16, 2019, the Dutch Data Protection Authority, the Autoriteit Persoonsgegevens (the “Dutch DPA”), announced that it had requested 30 private organizations provide information about the agreements they have with other entities that process personal data on their behalf. The Dutch DPA indicated that the targeted organizations are mainly in energy, media and trade sectors.

On January 15, 2019, the UK House of Commons rejected the draft Brexit Withdrawal Agreement negotiated between the UK Prime Minister and the EU by a margin of 432-202. While the magnitude of the loss sets in motion a process which could potentially have resulted in an early general election being held, on January 16 a majority of British Members of Parliament rejected a vote of no confidence in Theresa May’s government.

On January 10, 2019, Advocate General Maciej Szpunar (“Advocate General”) of the Court of Justice of the European Union (“CJEU”) issued an Opinion in the case of Google v. CNIL, which is currently pending before the CJEU. In the Opinion, the Advocate General provided his views concerning the territorial scope of the right to be forgotten under the relevant EU Data Protection Directive in the case at hand.

On October 22, 2018, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth LLP co-hosted a workshop in Brussels on “Can GDPR Work for Health Scientific Research?” (the “Workshop”) with the European Federation of Pharmaceutical Industries and Associations (“EFPIA”) and the Future of Privacy Forum (“FPF”) to address the challenges raised by the EU General Data Protection Regulation (“GDPR”) in conducting scientific health research.

On November 30, 2018, the Austrian Data Protection Authority (“DPA”) published a decision in response to a complaint received from an individual regarding the cookie consent options offered on an Austrian newspaper’s website. As a factual matter, the Austrian newspaper offered three options to individuals who sought to access content on the site: (1) accept the use of cookies for analytics and advertising purposes and have full, complimentary website access; (2) refuse cookies and obtain access to only limited content on the website; or (3) pay a monthly subscription of €6 to obtain full access to the website without accepting the use of cookies and similar tracking technologies.

On December 27, 2018, the French Data Protection Authority (the “CNIL”) announced that it imposed a fine of €250,000 on French telecom operator Bouygues Telecom for failing to protect the personal data of the customers of its mobile package B&YOU.

On December 28, 2018, the French Data Protection Authority (the “CNIL”) published guidance regarding the conditions to be met by organizations in order to lawfully share personal data with business partners or other third parties, such as data brokers. The guidance focused, in particular, on such a scenario in the context of the EU General Data Protection Regulation (“GDPR”). The CNIL guidance sets forth the 5 following conditions:

On December 21, 2018, the Irish Data Protection Commission (the “DPC”) published preliminary guidance on data transfers to and from the UK in the event of a “no deal” Brexit (the “Guidance”). The Guidance is relevant for any Irish entities that transfer personal data to the UK, including Northern Ireland.

On December 20, 2018, the French data protection authority (the “CNIL”) announced that it levied a €400,000 fine on Uber France SAS, the French establishment of Uber B.V. and Uber Technologies Inc., for failure to implement some basic security measures that made possible the 2016 Uber data breach.

On December 20, 2018, the Department of Commerce updated its frequently asked questions (“FAQs”) on the EU-U.S. and Swiss-U.S. Privacy Shield Frameworks (collectively, the “Privacy Shield”) to clarify the effect of the UK’s planned withdrawal from the EU on March 29, 2019. The FAQs provide information on the steps Privacy Shield participants must take to receive personal data from the UK in reliance on the Privacy Shield after Brexit.

The European Commission (“Commission”), the European Parliament (“Parliament”) and the Council of the European Union reached an agreement earlier this month regarding changes to the Proposal for a Regulation on ENISA, the “EU Cybersecurity Agency”, and repealing Regulation (EU) 526/2013, and on Information and Communication Technology Cybersecurity Certification (the “Cybersecurity Act”). The agreement empowers the EU Cybersecurity Agency (known as European Union Agency for Network and Information and Security, or “ENISA”) and introduce an EU-wide cybersecurity certification for services and devices.

On December 19, 2018, the European Commission (the “Commission”) issued a press release regarding the publication of the Commission’s second annual review of the functioning of the EU-U.S. Privacy Shield (the “Report”).

On December 13, 2018, the Dutch Data Protection Authority (“Autoriteit Persoonsgegevens”) (the “Dutch DPA”) published a report on the complaints it has received since the EU General Data Protection Regulation (“GDPR”) became applicable on May 25, 2018 (the “Report”). The GDPR gives data subjects the right to lodge a complaint with the relevant national supervisory authority when they believe that their personal data is processed in a way violative of the GDPR (see article 77 of the GDPR).

View the Report and the press release (in Dutch).

EU data protection authorities (“DPAs”) are proving their willingness as enforcers with respect to the GDPR, not just with regard to the most serious acts of non-compliance but also for errors of a more administrative nature. Under the previous regime, DPAs typically required companies to register their processing activities with the regulator, but the GDPR now permits organizations to maintain data processing inventories internally, only showing them to DPAs when there is a particular need to do so. In the UK, the Information Commissioner’s Office (“ICO”) introduced a requirement for organizations to pay a “data protection fee,” which data controllers falling under the ICO’s scope must pay once a year. Those companies that fail to pay the fee risk incurring a fine of up to £4,350 each.

On November 29, 2018, 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 to manage (1) business activities and (2) unpaid invoices. 

On November 23, 2018, the European Data Protection Board (“EDPB”) published its long-awaited draft guidelines on the extraterritorial application of the EU General Data Protection Regulation (“GDPR”) (the “Guidelines”). To date, there has been a degree of uncertainty for organizations regarding the scope of the GDPR’s application outside of the EU. While the Guidelines provide some clarity on this issue, questions will remain for non-EU controllers and processors. Importantly, these Guidelines are only in draft form and are open for consultation until January 18, 2019, which will give organizations an opportunity to provide comments and raise additional questions in an effort to obtain further clarification from the EDPB on these important scoping questions.

On November 23, 2018, the Belgian Data Protection Authority (the “Belgian DPA”) published a review of its activities since the EU General Data Protection Regulation (“GDPR”) became applicable on May 25, 2018 (the “Review”).

On November 19, 2018, The Register reported that the UK Information Commissioner’s Office (“ICO”) issued a warning to the U.S.-based The Washington Post over its approach to obtaining consent for cookies to access the service.

On November 14, 2018, the UK government and the EU agreed upon the text of a draft Withdrawal Agreement in relation to the UK’s impending exit from the European Union on March 29, 2019. The draft Withdrawal Agreement provides for a transition period under which the UK will remain subject to a number of its EU membership obligations, during the period starting when the UK leaves the EU on March 29, 2019 to the end of the transition period on December 31, 2020. The draft Withdrawal Agreement provides the following in relation to data protection law:

On November 8, 2018, Privacy International (“Privacy”), a non-profit organization “dedicated to defending the right to privacy around the world,” filed complaints under the GDPR against consumer marketing data brokers Acxiom and Oracle. In the complaint, Privacy specifically requests the Information Commissioner (1) conduct a “full investigation into the activities of Acxiom and Oracle,” including into whether the companies comply with the rights (i.e., right to access, right to information, etc.) and safeguards (i.e., data protection impact assessments, data protection by design, etc.) in the GDPR; and (2) “in light of the results of that investigation, [take] any necessary further [action]... that will protect individuals from wide-scale and systematic infringements of the GDPR.”

On November 7, 2018, the Data Protection Authority of Bavaria for the Private Sector (the “BayLDA”) issued a press release describing audits completed and pending in Bavaria since the EU General Data Protection Regulation (“GDPR”) took force.

On November 6, 2018, the French Data Protection Authority (the “CNIL”) published its own guidelines on data protection impact assessments (the “Guidelines”) and a list of processing operations that require a data protection impact assessment (“DPIA”). Read the guidelines.

On October 17, 2018, the French data protection authority (the “CNIL”) published a press release detailing the rules applicable to devices that compile aggregated and anonymous statistics from personal data—for example, mobile phone identifiers (i.e., media access control or “MAC” address) —for purposes such as measuring advertising audience in a given space and analyzing flow in shopping malls and other public areas. Read the press release (in French).

Recently, the French Data Protection Authority (the “CNIL”) published a statistical review of personal data breaches during the first four months of the EU General Data Protection Regulation’s (“GDPR”) entry into application. View the review (in French). 

On October 19, 2018, European Commissioner for Justice, Consumers and Gender Equality Věra Jourová and U.S. Secretary of Commerce Wilbur Ross issued a joint statement regarding the second annual review of the EU-U.S. Privacy Shield framework, taking place in Brussels beginning October 18. The statement highlights the following:

On October 11, 2018, the French data protection authority (the “CNIL”) announced that it adopted two referentials (i.e., guidelines) on the certification of the data protection officer (“DPO”). View the announcement (in French). As a practical matter, both referentials are intended to apply to DPOs located in France or who speak French. The referentials include:

On October 5, 2018, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth LLP hosted a workshop on how to implement, demonstrate and incentivize accountability under the EU General Data Protection Regulation (“GDPR”), in collaboration with AXA in Paris, France. In addition to the workshop, on October 4, 2018, CIPL hosted a Roundtable on the Role of the Data Protection Office (“DPO”) under the GDPR at Mastercard and a pre-workshop dinner at the Chanel School of Fashion, sponsored by Nymity.

The European Data Protection Board (“EDPB”) recently published 22 Opinions on the draft lists of Supervisory Authority (“SAs”) in EU Member States regarding which processing operations are subject to the requirement of conducting a data protection impact assessment (“DPIA”) under the EU General Data Protection Regulation (“GDPR”).

Recently, the French Data Protection Authority (“CNIL”) published its initial assessment of the compatibility of blockchain technology with the EU General Data Protection Regulation (GDPR) and proposed concrete solutions for organizations wishing to use blockchain technology when implementing data processing activities.

On September 27, 2018, the Federal Trade Commission announced a settlement agreement with four companies - IDmission, LLC, (“IDmission”) mResource LLC (doing business as Loop Works, LLC) (“mResource”), SmartStart Employment Screening, Inc. (“SmartStart”), and VenPath, Inc. (“VenPath”) - over allegations that each company had falsely claimed to have valid certifications under the EU-U.S. Privacy Shield framework. The FTC alleged that SmartStart, VenPath and mResource continued to post statements on their websites about their participation in the Privacy Shield after allowing their certifications to lapse. IDmission had applied for a Privacy Shield certification but never completed the necessary steps to be certified.

On September 25, 2018, the French Data Protection Authority (the “CNIL”) published the first results of its factual assessment of the implementation of the EU General Data Protection Regulation (GDPR) in France and in Europe. When making this assessment, the CNIL first recalled the current status of the French legal framework, and provided key figures on the implementation of the GDPR from the perspective of privacy experts, private individuals and EU supervisory authorities. The CNIL then announced that it will adopt new GDPR tools in the near future. Read the full factual assessment (in French).

The Information Commissioner’s Office (“ICO”) in the UK has issued the first formal enforcement action under the EU General Data Protection Regulation (GDPR) and the UK Data Protection Act 2018 (the “DPA”) on Canadian data analytics firm AggregateIQ Data Services Ltd. (“AIQ”). The enforcement action, in the form of an Enforcement Notice served under section 149 of the DPA, requires AIQ to “cease processing any personal data of UK or EU citizens obtained from UK political organizations or otherwise for the purposes of data analytics, political campaigning or any other advertising purposes.”

Recently, the UK Information Commissioner's Office (“ICO”) fined credit rating agency Equifax £500,000 for failing to protect the personal data of up to 15 million UK individuals. The data was compromised during a cyber attack that occurred between May 13 and July 30, 2017, which affected 146 million customers globally. Although Equifax’s systems in the U.S. were targeted, the ICO found the credit agency's UK arm, Equifax Ltd, failed to take appropriate steps to ensure that its parent firm, which processed this data on its behalf, had protected the information. The ICO investigation uncovered a number of serious contraventions of the UK Data Protection Act 1998 (the “DPA”), resulting in the ICO imposing on Equifax Ltd the maximum fine available.

On September 5, 2018, the Law of 30 July 2018 on the Protection of Natural Persons with regard to the Processing of Personal Data (the “Law”) was published in the Belgian Official Gazette.

This is the second step in adapting the Belgian legal framework to the EU GDPR after the Law of 3 December 2017 Creating the Data Protection Authority, which reformed the Belgian Data Protection Authority.

The Law is available in French and Dutch.

On September 5, 2018, the European Commission (the “Commission”) announced in a press release the launch of the procedure to formally adopt the Commission’s adequacy decision with respect to Japan.

Recently, the Department of Commerce updated its frequently asked questions (“FAQs”) on the EU-U.S. and Swiss-U.S. Privacy Shield Frameworks (collectively, the “Privacy Shield”) to provide additional clarification on a wide range of topics, including transfers of personal information to third parties, the application of the Privacy Shield Principles to data processors, and the relation of the Clarifying Lawful Overseas Use of Data Act (“CLOUD Act”) to the Privacy Shield. Certain key insights from the updated FAQs are outlined below:

• Data processors. When ...

On July 19, 2018, the French Data Protection Authority (“CNIL”) announced that it served a formal notice to two advertising startups headquartered in France, FIDZUP and TEEMO. Both companies collect personal data from mobile phones via software development kit (“SDK”) tools integrated into the code of their partners’ mobile apps—even when the apps are not in use—and process the data to conduct marketing campaigns on mobile phones.

On July 31, 2018, the Supreme Court of Ireland granted Facebook, Inc.’s (“Facebook”) leave to appeal a lower court’s ruling sending a privacy case to the Court of Justice of the European Union (the “CJEU”). Austrian privacy activist Max Schrems challenged Facebook’s data transfer practices, arguing that Facebook’s use of standard contractual clauses failed to adequately protect EU citizens’ data. Schrems, supported by Irish Data Protection Commissioner Helen Dixon, argued that the case belonged in the CJEU, the EU’s highest judicial body. The High Court agreed. Facebook’s request to appeal followed.

On July 10, 2018, 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 certification and identifying certification criteria in accordance with Articles 42 and 43 of the GDPR (the “Guidelines”). The Guidelines were adopted by the EDPB on May 25, 2018, for public consultation.

On July 12, 2018, British Prime Minister Theresa May presented her Brexit White Paper, “The Future Relationship Between the United Kingdom and the European Union,” (the "White Paper”) to Parliament. The White Paper outlines the UK’s desired future relationship with the EU post-Brexit, and includes within its scope important data protection-related issues, including digital trade, data flows, cooperation for the development of Artificial Intelligence (“AI”), and the role of the Information Commissioner’s Office (“ICO”), as further discussed below:

On July 17, 2018, the European Union and Japan successfully concluded negotiations on a reciprocal finding of an adequate level of data protection, thereby agreeing to recognize each other’s data protection systems as “equivalent.” This will allow personal data to flow safely between the EU and Japan, without being subject to any further safeguards or authorizations. 

On July 5, 2018, the European Parliament issued a nonbinding resolution (“the Resolution”) that calls on the European Commission to suspend the EU-U.S. Privacy Shield unless U.S. authorities can “fully comply” with the framework by September 1, 2018. The Resolution states that the data transfer mechanism does not provide the adequate level of protection for personal data as required by EU data protection law. The Resolution takes particular aim at potential access to EU residents’ personal data by U.S. national security agencies and law enforcement, citing the passage of the CLOUD Act as having “serious implications for the EU, as it is far-reaching and creates a potential conflict with the EU data protection laws.”

On July 2, 2018, the Federal Trade Commission announced that California company ReadyTech Corporation (“ReadyTech”) agreed to settle FTC allegations that ReadyTech misrepresented it was in the process of being certified as compliant with the EU-U.S. Privacy Shield (“Privacy Shield”) framework for lawfully transferring consumer data from the European Union to the United States. The FTC finalized this settlement on October 17, 2018.

On January 10, 2017, the European Commission adopted a proposal for a Regulation on Privacy and Electronic Communications (“ePR”). On June 8, 2018, the Council of the European Union’s Bulgarian Presidency presented a progress report (the “Report”) on the draft ePR to the Transport, Telecommunications and Energy Council. The Report reflects on the amendments presented in the May 2018 Examination of the Presidency text. The Report is split into two sections: Annex I, a progress report, and Annex II, questions for the policy debate.

On May 30, 2018, the European Data Protection Board (“EDPB”), replacing the Article 29 Working Party, published the final version of Guidelines 2/2018 on derogations in the context of international data transfers and draft Guidelines 1/2018 on certification under the EU General Data Protection Regulation (“GDPR”). 

On May 29, 2018, Bojana Bellamy published a letter on the importance and value of data protection officers (“DPOs”) on the International Association of Privacy Professionals’ Privacy Perspectives blog, entitled A Letter to the Unsung Hero of the GDPR (the “Letter”). The Letter acknowledges the herculean efforts and boundless commitment DPOs and those in a similar role have demonstrated in preparing their organizations for the GDPR.

On May 16, 2018, the Irish Data Protection Bill 2018 (the “Bill”) entered the final committee stage in Dáil Éireann (the lower house and principal chamber of the Irish legislature). The Bill was passed by the Seanad (the upper house of the legislature) at the end of March 2018. In the current stage, final statements on the Bill will be made before it is signed into law by the President.

On May 2, 2018, the Belgian Privacy Commission (the “Belgian DPA”) published its Annual Activity Report for 2017 (the “Annual Report”), highlighting its main accomplishments for the past year.

On May 14, 2018, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth LLP published a study on how the ePrivacy Regulation will affect the design and user experiences of digital services (the “Study”). The Study was prepared by Normally, a data product and service design studio, whom CIPL had asked for an independent expert opinion on user experience design.

On April 11, 2018, the Article 29 Working Party (the “Working Party”) adopted two Recommendations on the Standard Application for Approval of Data Controller or Processor Binding Corporate Rules for the Transfer of Personal Data (the “Recommendations”). Binding Corporate Rules (“BCRs”) are one of the mechanisms offered to companies to transfer data outside the European Economic Area to a country which does not provide an adequate level of protection for the data according to Article 45 of the GDPR. These Recommendations, in the form of questionnaires, are intended to help BCR applicants demonstrate how they fulfill the requirements of Article 47 of the GDPR.

The Belgian Privacy Commission (the “Belgian DPA”) recently released a Recommendation (in French and Dutch) on Data Protection Impact Assessment (“DPIA”) and the prior consultation requirements under Articles 35 and 36 of the EU General Data Protection Regulation (“GDPR”) (the “Recommendation”). The Recommendation aims to provide guidance on the core elements and requirements of a DPIA, the different actors involved and specific provisions.

On March 29, 2018, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth LLP submitted formal comments to the Article 29 Working Party (the “Working Party”) on its draft guidelines on the accreditation of certification bodies under the GDPR (the “Guidelines”). The Guidelines were adopted by the Working Party on February 6, 2018, for public consultation.

On March 20, 2018, the Centre for Information Policy Leadership ("CIPL") at Hunton Andrews Kurth LLP issued a factsheet outlining relevant GDPR provisions for negotiations surrounding the proposed ePrivacy Regulation (the "Factsheet").

On March 26, 2018, the U.S. Department of Commerce posted an update on the actions it has taken between January 2017 and March 2018 to support the EU-U.S. and Swiss-U.S. Privacy Shield Frameworks (collectively, the “Privacy Shield”). The update details measures taken in support of commercial and national security issues relating to the Privacy Shield.

On March 26, 2018, the Centre for Information Policy Leadership at Hunton & Williams LLP and AvePoint released its second Global GDPR Readiness Report (the “Report”), detailing the results of a joint global survey launched in July 2017 concerning organizational preparedness for implementing the EU General Data Protection Regulation (“GDPR”). The Report tracks the GDPR implementation efforts of over 235 multinational organizations, and builds on the findings of the first Global GDPR Readiness Report by providing insights on key changes in readiness levels from 2016 to 2017.

Hunton & Williams LLP is pleased to announce that Richard Thomas, Global Strategy Advisor to the Centre for Information Policy Leadership (“CIPL”), has been selected as Chair for the Bailiwick of Guernsey’s new data protection authority. Adding the appointment to his position at CIPL, Thomas will be formally appointed in May and will work with the Data Protection Commissioner and the States of Guernsey to support the island’s regulatory framework in conjunction with the introduction of its new data protection law. Thomas will work on a shadow basis until his formal appointment, and the role is expected to command between 10 and 15 days per year.

The Centre for Information Policy Leadership (“CIPL”) at Hunton & Williams LLP is pleased to announce that Nathalie Laneret will be joining CIPL as Director of Privacy Policy in May. She brings more than 20 years of experience in data protection policy both in-house and in private practice. She is admitted to the New York and Paris bars and has experience in both France and in the U.S. on data protection, IT and security matters, contracts, competition law, compliance issues and litigation.

On March 6, 2018, the Centre for Information Policy Leadership (“CIPL”) at Hunton & Williams LLP issued a white paper on GDPR Implementation in Respect of Children’s Data and Consent (the “White Paper”). The White Paper sets forth guidance and recommendations concerning the application of GDPR requirements to the processing of children’s personal data. The White Paper also highlights and addresses several issues raised by the Article 29 Working Party (the “Working Party”) with regard to children in its guidelines on consent and issues raised by the UK Information Commissioner’s Office in its Consultation on Children and the GDPR.

On February 12, 2018, the Luxembourg data protection authority (Commission nationale pour la protection des donées, “CNPD”) published on its website (in English and French) a form to be used for the purpose of compliance with data breach notification requirements applicable under the EU General Data Protection Regulation (the “GDPR”). The CNPD also published questions and answers (“Q&As”) regarding the requirements.

On February 7, 2018, representatives of European Data Protection Authorities (“DPAs”) met in Brussels to appoint the new leader of the current Article 29 Data Protection Working Party (the “Working Party”). Andrea Jelinek, head of the Austrian DPA, was elected to the post and will replace Isabelle Falque-Pierrotin, leader of the French DPA, who has represented the Working Party over the past four years.

On January 18, 2018, the Centre for Information Policy Leadership (“CIPL”) at Hunton & Williams LLP submitted formal comments to the Article 29 Working Party (the “Working Party”) on its updated Working Documents, which include a table with the elements and principles found in Binding Corporate Rules (“BCRs”) and Processor Binding Corporate Rules (the “Working Documents”). The Working Documents were adopted by the Working Party on October 3, 2017, for public consultation.

On January 29, 2018, the Centre for Information Policy Leadership (“CIPL”) at Hunton & Williams LLP submitted formal comments to the Article 29 Working Party (the “Working Party”) on its Guidelines on Consent (the “Guidelines”). The Guidelines were adopted by the Working Party on November 28, 2017, for public consultation.

On January 29, 2018, the Centre for Information Policy Leadership (“CIPL”) at Hunton & Williams LLP submitted formal comments to the Article 29 Working Party (the “Working Party”) on its Guidelines on Transparency (the “Guidelines”). The Guidelines were adopted by the Working Party on November 28, 2017, for public consultation.