Privacy & Information Security Law Blog

On February 5, 2013, Singapore’s new data protection agency, the Personal Data Protection Commission, published its first consultation paper (the “Paper”) articulating proposals for a data protection regulation. The Paper outlines the Commission’s positions on three key issues: (1) requests for access and correction; (2) transfer of personal data outside of Singapore; and (3) individuals who may act for others under the Personal Data Protection Act (“PDPA”). The PDPA was passed by the Singapore Parliament in October 2012 and became law in January 2013.

On January 29, 2013, the UK Court of Appeal ruled that the UK criminal records disclosure regime is disproportionate and incompatible with the UK Human Rights Act 1998 (the “Act”). The landmark judgment focused on the case of an appellant named “T,” who had received two “cautions” for stealing two bicycles when he was 11 years old. After a number of years, the appellant had to disclose these cautions twice in connection with required criminal records checks: first, at the age of 17, when he applied for a part-time job at a local football club, and again when he applied for a college course.

On January 28, 2013, the London office of Hunton & Williams marked European Data Privacy Day with the launch of the fourth edition of Data Protection Law & Practice, written by Senior Attorney Rosemary Jay. A panel comprised of the current UK Information Commissioner, Christopher Graham; his three predecessors, Eric Howe CBE, Elizabeth France CBE and Richard Thomas CBE; and the UK Minister of State for Justice, Lord McNally, spoke at the event and provided a retrospective on data protection in the United Kingdom since the Information Commissioner’s Office’s (“ICO’s”) inception in 1984.

On January 22, 2013, the Article 29 Working Party released Opinion 01/2013 (the “Opinion”) on the implementing acts contained in the European Commission’s proposed General Data Protection Regulation (the “Proposed Regulation”).

Following up on the UK Information Commissioner’s Office’s (“ICO’s”) positive reaction to the European Commission’s proposed General Data Protection Regulation (the “Proposed Regulation”), the ICO has now published additional thoughts on the European Commission’s proposed revised data protection framework, reacting to the recent draft report prepared by the rapporteur to the EU Parliament’s Committee on Civil Liberties, Justice and Home Affairs, Jan Philipp Albrecht. In February 2012, the ICO released an initial analysis of the Commission’s package of proposals, which included the proposed Police and Criminal Justice Data Protection Directive (“Proposed Directive”).

On January 11, 2013, the UK Government published its response (the “Response”) to the UK Justice Select Committee’s opinion on the European Commission’s proposed revised data protection framework. The Response highlights a number of concerns expressed by the UK Government regarding the Commission’s legislative proposals.

On January 28, 2013, European Data Privacy Day, the London office of Hunton & Williams hosted the launch of senior attorney Rosemary Jay’s fourth edition book, Data Protection Law & Practice, by publisher Sweet & Maxwell.

Reporting from Australia, former Australian Privacy Commissioner Malcolm Crompton, Managing Director of Information Integrity Solutions Pty Ltd (“IIS”), writes:

The Australian Privacy Amendment (Enhancing Privacy Protection) Act 2012 (the “Act”) will make significant changes to the Privacy Act 1988. It’s early days for the changes and the impact for organizations will depend on their circumstances. Over the next 15 months we expect to see a range of guidance material from the Office of the Australian Information Commissioner.

On January 24, 2013, the UK Information Commissioner’s Office (“ICO”) served Sony Computer Entertainment Europe Limited (“Sony”) with a monetary penalty of £250,000 resulting from a serious breach of the Data Protection Act 1998. An April 2011 security incident involving the Sony PlayStation Network Platform affected the personal data of millions of customers, including names, addresses, email addresses, dates of birth, account passwords and credit card details.

On January 16, 2013, the French Data Protection Authority (“CNIL”) released its opinion on the draft report issued by Jan Philipp Albrecht, the rapporteur to the EU Parliament’s Committee on Civil Liberties, Justice and Home Affairs (the “Report”). The Report included detailed amendments to the European Commission’s proposed General Data Protection Regulation (the “Proposed Regulation”) submitted by various stakeholders which Rapporteur Albrecht consolidated and distilled into a single text. The CNIL’s Report welcomes these amendments and in particular, the following:

Recently, the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (“LIBE”) released a study titled Fighting cyber crime and protecting privacy in the cloud (the “Study”). The Study originally was prepared in October 2012 at the request of the LIBE Committee by the European Parliament’s Policy Department of Citizens’ Rights and Constitutional Affairs, with the help of the Centre for European Policy Studies and the Centre d’Etudes sur les Conflits.

On January 10, 2013, the rapporteur to the EU Parliament’s Committee on Civil Liberties, Justice and Home Affairs (“LIBE”), Jan Philipp Albrecht, presented his draft report (the “Report”) on the proposed amendments to the European Commission’s proposed General Data Protection Regulation (the “Proposed Regulation”) to the LIBE Committee.

On December 19, 2012, the Irish Data Protection Commissioner (“DPC”) wrote to 80 website operators requesting details regarding how they are complying with recent changes to Irish law governing the use of cookies and other similar technologies (SI 336/ 2011, the “Regulations”). The letter expects website operators, which include government departments as well as companies, to comply fully with the Regulations, which took effect 18 months ago and require user consent before deploying or accessing cookies or other information stored on users’ computer equipment. If the relevant organizations have not yet achieved compliance, they are expected to provide an explanation to the DPC explaining “why it has not been possible to comply by now, a clear timescale for when compliance will be achieved, and details of specifically what work is being done to make that happen.”

On December 28, 2012, the Standing Committee of the National People’s Congress (“NPC”) of the People’s Republic of China passed the Resolution of the Standing Committee of the NPC Relating to Strengthening the Protection of Information on the Internet (the “Regulations”). The Regulations contain significant and far-reaching requirements applicable to the collection and processing of electronic personal information via the Internet.

Internet users have expressed increasing concern about efforts to track their online activities. As the online tracking methods used to target advertisements have expanded in both scope and complexity, regulators have taken notice and have begun to act in the online behavioral tracking and advertising space. In an article published in the November/December 2012 issue of IP Litigator, Lisa J. Sotto, partner and head of the Global Privacy and Data Security practice at Hunton & Williams LLP, and Melinda L. McLellan, a senior associate on the firm’s Privacy and Data Security team ...

On December 21, 2012, the Article 29 Working Party issued a press release announcing the launch of Binding Corporate Rules (“BCRs”) for processors effective January 1, 2013. This announcement follows the Article 29 Working Party’s adoption of a Working Document (WP 195) on June 6, 2012, which set forth requirements for BCRs for processors, and an application form for submitting BCRs for processors issued on September 17, 2012.

On December 19, 2012, the European Commission announced its formal recognition of personal data protection in New Zealand. The European Commission approved New Zealand’s status as a country that provides “adequate protection”  of personal data under the European Data Protection Directive 95/46/EC. This determination means that personal information from Europe may flow freely to New Zealand.  Although the law in New Zealand has been modernized over the years, it is not new.  New Zealand will be celebrating the 25th anniversary of its data protection law in 2013. Furthermore, New Zealand has been very active in the development of international standards at the OECD and APEC, and has participated in initiatives such as the Global Accountability Project. New Zealand’s request to be deemed adequate has been pending for several years. This determination follows the positive Opinion of the Article 29 Working Party issued on April 4, 2011, concerning the level of protection under New Zealand’s law.

U.S. Federal Trade Commission Chairman Jon Leibowitz announced on Monday that David C. Vladeck, director of the FTC's Bureau of Consumer Protection, is leaving the Commission on December 31, 2012 to return to the Georgetown University Law Center.

On December 13, 2012, the UK Information Commissioner’s Office (“ICO”) announced a consultation on a draft subject access code of practice (the “Code”). The Code is open for public comment until February 21, 2013.

On December 18, 2012, the Information Commissioner’s Office (“ICO”) released an enforcement report (the “Report”) on the extent of compliance with recent changes to UK law governing the use of cookies (The Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011). The ICO previously issued an interim report on organizations’ attempts to achieve compliance, in which it concluded that organizations “must try harder” with their cookie compliance efforts.

On December 12, 2012, the Centre for Information Policy Leadership at Hunton & Williams LLP (the “Centre”) released an accountability self-assessment tool designed to help organizations evaluate their internal privacy programs and practices. The tool is the product of the Global Accountability Project for which the Centre serves as Secretariat.

On November 23, 2012, a German data protection working group on advertising and address trading published guidelines (in German) on the collection, processing and use of personal data for advertising purposes (the “Guidelines”). The working group was established by the committee of German data protection authorities (“DPAs”) and is chaired by the Bavarian DPA.

On November 23, 2012, the German Federal Council (Bundesrat or the “Council”) published its comments on the European Commission’s strategy on cloud computing and also submitted them to the Commission.

On November 20, 2012, the European Network and Information Security Agency (“ENISA”) published a new report entitled “The Right to Be Forgotten – Between Expectations and Practice.” The report complements two earlier papers which focused on data collection and storage and online behavioral advertising, and focuses on the technical implications of the proposed General Data Protection Regulation’s new right to be forgotten.

On November 21, 2012, the UK Committee of Advertising Practice (“CAP”) released new rules on online behavioral advertising (“OBA”). CAP is the UK body which writes and maintains the UK advertising codes, which are administered and enforced by the UK Advertising Standards Authority (“ASA”).

On November 21, 2012, the UK Supreme Court handed down a judgment in The Rugby Football Union vs. Consolidated Information Services Limited (Formerly Viagogo Limited), a case addressing the application of Article 8 of the EU Charter of Fundamental Rights (Protection of Personal Data) in the context of court orders seeking to disclose the identities of alleged wrongdoers.

On November 22, 2012, the Brussels-based publication European Voice published an editorial by U.S. Department of Commerce General Counsel Cameron Kerry entitled Avoiding a Data Divide Between the US and the EU. The article notes the importance of continued collaboration between the European Union and the United States as both assess their respective privacy frameworks to ensure that any changes encourage enhanced trade and strong economic growth, but also contain robust protections for consumers. Mr. Kerry’s editorial emphasizes the need to foster global privacy ...

On November 22, 2012, the UK Ministry of Justice released a written ministerial statement (“Statement”) announcing the publication of its Government Impact Assessment on the European Commission’s legislative reform package on the EU data protection framework. The European Commission has claimed that a regulation implementing a single set of data protection rules across the European Union would save businesses around €2.3 billion a year. In its Statement, the Ministry of Justice disagrees, stating that the Commission’s proposals will impose burdens that “far outweigh” the benefits. At a time of great economic upheaval across Europe, the Ministry of Justice asserts that the regulatory burden should be reduced, not increased, to stimulate growth, and that it is “difficult therefore to justify the extra red-tape and tick box compliance that the proposals represent.” The Ministry of Justice also notes that “[t]he UK Government is seriously concerned about the potential economic impact of the proposed data protection Regulation.”

On November 28, 2012, the UK Information Commissioner’s Office (“ICO”) issued monetary penalties totaling £440,000 to two owners of a marketing company that sent millions of unlawful spam SMS text messages over a period of three years.

On November 27, 2012, the International Chamber of Commerce of the United Kingdom (“ICC UK”) released the second edition of its cookie guidance (the “Guidance”). The ICC UK released the first edition of the Guidance in April of this year, and has produced this latest version to take into account updated guidance released by the UK Information Commissioner’s Office (“ICO”), the Article 29 Working Party Opinion 04/2012 on cookie consent exemption and new UK advertising rules on online behavioral advertising.

On November 19, 2012, 40 German advertising associations launched the “German Data Protection Council for Online Advertising,” a new initiative to coordinate and enforce self-regulation in the German online behavioral advertising (“OBA”) sector. The initiative is linked to the European Interactive Digital Advertising Alliance (“EDAA”), which manages the self-regulation efforts of the European online advertising industry.

On December 3, 2012, the Centre for Information Policy Leadership (the “Centre”) at Hunton & Williams will co-host a special International Association of Privacy Professionals (“IAPP”) KnowledgeNet meeting in Brussels, Belgium. The meeting will explore global developments in accountability in the context of the proposed EU Data Protection Regulation and the impact of accountability on data protection management.

Hunton & Williams is pleased to announce the firm maintained its top-tier “Band 1” ranking in Data Protection in the 2013 edition of Chambers UK. Our London-based principals also maintained their high rankings as leading Data Protection lawyers:

• Bridget Treacy, managing partner of the firm’s London office and head of the UK Privacy and Data Security practice, was ranked as a “Star Individual.”
• Richard Thomas, Global Strategy Advisor to the Centre for Information Policy Leadership at Hunton & Williams LLP, was ranked as a “Senior Statesman.”
• Rosemary Jay, a senior ...

On November 16, 2012, European Data Protection Supervisor Peter Hustinx published an Opinion on the European Commission’s Communication on cloud computing (part of the Commission’s broader cloud computing strategy). The Opinion focuses on the accountability principle and emphasizes the importance of clearly defining the responsibilities of all parties involved in cloud computing, and analyzes specific cloud computing issues in the context of both the current EU data protection framework, as well as the proposed General Data Protection Regulation.

On November 15, 2012, the UK Office of Fair Trading (the “OFT”) launched a call for information to investigate whether offering “personalized pricing” based on data companies collect about consumers’ online behavior violates consumer protection legislation in the UK. The OFT will look at how companies gather data related to “consumers’ browsing history, purchases, demographic, hardware, operating system, etc and use this to personalise products and prices.” In particular, as indicated on the OFT’s website, the OFT will analyze:

On November 20, 2012, the UK Information Commissioner’s Office (“ICO”) published guidance on IT asset disposal for organizations (the “Guidance”) to explain “to data controllers what they need to consider when disposing of electronic equipment that may contain personal data.”

On November 20, 2012, the UK Information Commissioner’s Office (“ICO”) published “Anonymisation: Managing Data Protection Risk Code of Practice” (the “Code”). The purpose of the Code is to provide organizations with a framework for assessing the risks of anonymization. It also sets forth good practice recommendations that may be adopted by organizations to provide a “reasonable degree of confidence” that the publication and sharing of anonymized data will not lead to an “inappropriate disclosure of personal data.” The published Code follows a consultation on the same topic earlier this year. The ICO also announced the creation of the UK Anonymisation Network, which will promote the sharing of good practices related to anonymization across the public and private sectors.

On December 5, 2012, at 1:00 p.m. EST, the U.S. Department of Commerce’s International Trade Administration (“ITA”) will be hosting a webinar to discuss data privacy issues. Webinar participants will hear from Commerce privacy experts on the Obama Administration’s privacy blueprint. There also will be an update on significant international data privacy developments such as the Asia-Pacific Economic Cooperation (“APEC”) forum’s work to implement the Cross-Border Privacy Rules (“CBPRs”) system and the U.S.-European Union and U.S.-Swiss Safe Harbor ...

Following the launch of Hunton & Williams’ Data Protection Executive Briefing Paper on the proposed EU Data Protection Regulation, we are pleased to announce that on November 29, 2012, we will host a further workshop to explore the challenges facing processors under the draft Regulation. In this workshop, attendees will:

• Explore how obligations on processers are likely to expand significantly;
• Learn how these new obligations will affect both processors and controllers; and
• Create a checklist for preparing for the changes ahead.

On November 13-15, 2012, delegates at the IAPP Europe Data Protection Congress in Brussels were given insight into how discussions with key policymakers are progressing. As European Parliament rapporteur and Member of the European Parliament Jan Philipp Albrecht aims to finalize the reform of the EU Data Protection Directive by the end of the current European Parliament’s mandate in 2014, this ambitious goal faces numerous hurdles.

In partnership with SC Magazine, we are pleased to announce that on November 22-23, 2012, SC Magazine will host its 2012 Virtual Summit “Tackling the Big 3: Clouds, Consumerisation, Cybercrime,” featuring Hunton & Williams partner Bridget Treacy. Following a year of sharp increases in data breaches and regulatory fines, the SC Summit will explore and focus on cybercrime, mobile devices and cloud security – three key priorities for 2013. Bridget Treacy and Paul Swarbrick, Chief Information Security Officer and Head of Cybersecurity for National Air Traffic Services, will open the Summit with their keynote presentation, “Where’s the Danger? From Cybercrime to Consumerisation to the Cloud, Today’s Most Potent Threats Unmasked.” Paul will discuss the data security issues that keep him awake at night and Bridget will offer vital, current perspective on the ever-changing legal landscape.

On November 8, 2012, the 84th Conference of the German Data Protection Commissioners concluded in Frankfurt (Oder). This bi-annual conference provides a private forum for the 16 German state data protection authorities (“DPAs”) and the Federal Commissioner for Data Protection and Freedom of Information Peter Schaar to share their views on current issues, discuss relevant cases and adopt Resolutions aimed at harmonizing how data protection law is applied across Germany.

On November 10, 2012, the German working group on technical and organizational data protection matters published guidelines (in German) on the technical and organizational separation requirements for automated data processing on shared IT systems (the “Guidelines”). The working group is part of the Conference of the German Data Protection Commissioners, which recently concluded its 84th Conference in Frankfurt (Oder).

The UK Information Commissioner’s Office (“ICO”) recently published a questionnaire to gather feedback on how privacy seals might be used to improve data protection compliance and customer privacy awareness. The questionnaire is available online until November 30, 2012.

On October 26, 2012, three resolutions were adopted by the closed session of the 34th International Conference of Data Protection and Privacy Commissioners and have been published on the conference website. Below we provide an overview of these resolutions.

The Polish Data Protection Authority (Generalny Inspektor Ochrony Danych Osbowych or “GIODO”) announced that it will host the 35th International Conference of Data Protection and Privacy Commissioners on September 23-27, 2013, in Warsaw, Poland. The first two days will be dedicated to the closed session, with the open sessions and side events taking place September 25-27.

In February 2013, the GIODO will facilitate the Global Accountability Project for which the Centre for Information Policy Leadership acts as Secretariat.

On October 29, 2012, the UK Information Commissioner’s Office (“ICO”) served private sector financial services company The Prudential Assurance Company Limited (“Prudential”) with a monetary penalty of £50,000 in connection with a serious violation of the Data Protection Act 1998 (“DPA”). The violation concerned a mix-up involving Prudential customer details. In March 2007, the customer records of two individuals who shared the same first name, surname and date of birth were mistakenly merged into a single customer record. Over the course of the following three years, mortgage and pension policy information relating to each customer was routinely sent to the wrong individual until Prudential took steps to separate the two customers’ records in September 2010.

On October 31, 2012, the UK Information Commissioner’s Office (“ICO”) published a consultation on changes to the notification process in the UK (the “Consultation”), which will be open for comment until November 30, 2012. The purpose of the Consultation is to provide the ICO with feedback on its proposed changes regarding: (1) whether an online and telephone payment service would be beneficial to data controllers, (2) whether the inclusion of contact details for information requests is useful and (3) whether the format of the public register should become narrative-based. The ICO is also seeking input regarding whether these changes would make the public register more meaningful and notification simpler for data controllers.

On October 24, 2012, the UK Justice Select Committee (the “Committee”), appointed by the House of Commons to examine the expenditure, administration and policy of the UK Ministry of Justice, published its opinion on the proposed General Data Protection Regulation (the “Proposed Regulation”) and proposed Police and Criminal Justice Data Protection Directive (the “Proposed Directive”). In the opinion, the Committee agrees that new proposals are necessary, both to update the existing data protection framework and to “confer on individuals their new rights and freedoms.” The Committee expresses reservations, however, regarding a number of key issues, and concludes that the European Union data protection proposals “need to go back to the drawing board.” The Committee notes that in its present form, the Proposed Regulation will not produce a “proportionate, practicable, affordable or effective system of data protection in the EU.”

On October 26, 2012, following the Justice Council’s meeting, Viviane Reding, Vice-President of the European Commission and Commissioner for Justice, Fundamental Rights and Citizenship, delivered a speech highlighting that the Commission’s proposed data protection law reform package is currently at a crucial stage in the negotiation process. Commissioner Reding stated that “[a] high level of data protection will turn the European Union into an international standard setter” and that “[o]nly a high level of data protection will generate trust between citizens and private enterprises.” Commissioner Reding conceded, however, that “[w]e do not want rules that place an excessive burden on business,” and that the Commission is prepared to make certain concessions relating to the draft proposals in order to “strike the right balance.”

On October 23, 2012, just two weeks after issuing a series of reports highlighting the UK Information Commissioner’s Office’s (“ICO’s”) concerns regarding data protection compliance within the public sector, the ICO has imposed a monetary penalty of £120,000 and issued an enforcement notice against Stoke-on-Trent City Council (“Stoke Council”) in relation to a serious data breach. The breach involved the transmission of sensitive personal information related to a child protection case by email in an unmarked and unprotected manner to the incorrect email address.

On October 24, 2012, Peter Hustinx, the European Data Protection Supervisor, speaking at the 34th International Conference of Data Protection and Privacy Commissioners in Uruguay, called the proposed EU Data Protection Regulation an “ambitious” undertaking, designed to achieve three goals.

First, Hustinx said the regulation is intended to provide the structure for European data protection for at least the next 20 years.

Second, the draft regulation will eliminate the wide variety of requirements that has resulted from the current EU Data Protection Directive’s being transposed into national law in 27 member states.

This year, the International Conference of Data Protection and Privacy Commissioners takes place in Punta del Este, Uruguay. On October 22, 2012, Article 29 Working Party President Jacob Kohnstamm kicked off the conference with the Public Voice session, sending a clear message that the Article 29 Working Party will resist EU data protection reform proposals involving the use of consent and legitimate business interests as legal bases for data processing.

Governance for next generation data applications increasingly will depend less on individual consent, and more on ...

In the opening session of the 34th International Conference of Data Protection and Privacy Commissioners, Conference Executive Committee Chair and Article 29 Working Party President Jacob Kohnstamm introduced this year’s conference. He noted that the topic of this year’s closed session will be profiling. Kohnstamm also indicated that future DPA conferences would focus on the closed session, which typically is comprised of current and former data protection authorities. Among the speakers in the 2012 closed session is Professor Fred H. Cate, Senior Policy Advisor for the Centre for Information Policy Leadership at Hunton & Williams LLP.

On October 17, 2012, Colombia enacted a new omnibus data protection law known as Ley 1581 del 17 de octubre de 2012 por el cual se dictan disposiciones generales para la protección de datos personales. The law contains significant notice and consent requirements, special provisions for the processing of children’s data, European-style data subject rights (e.g., access and correction), special obligations applicable specifically and directly to service providers, a registration requirement and cross-border data transfer restrictions. The law also provides for the ...

On October 15, 2012, Privacy Commissioner of Canada Jennifer Stoddart and the Federal Commissioner for Data Protection and Freedom of Information in Germany, Peter Schaar, signed an agreement to increase intra-authority collaboration between their organizations. The agreement covers the exchange of information between the two data protection authorities, for example by informing each other of pending complaints. Notably, the agreement also addresses coordination between the DPAs with respect to their supervision of international data processing activities.

On October 15, 2012, the Singapore Parliament passed the Personal Data Protection Act 2012. Though a law has been under discussion for quite some time, this bill was introduced before Parliament only recently, in September of this year. The new law will apply only to data processing in the private sector as data processing by public agencies (or organizations acting on behalf of public agencies) are already subject to internal government rules. Reportedly, the bill will become law in January 2013, enforceable after 18 months, in mid-2014.

On October 5, 2012, the Article 29 Working Party (the “Working Party”) issued an Opinion providing further input on the recent data protection reform discussions in the EU. The Opinion follows the Working Party’s first Opinion on the EU data protection reform proposals issued on March 23, 2012.

On September 22, 2012, the Peruvian Ministry of Justice and Human Rights issued a draft regulation to implement Peru’s new Personal Data Protection Law. The comment period expires on October 5, 2012; however, the U.S. Department of Commerce’s International Trade Administration has requested an extension to allow additional time for comments. The Centre for Information Policy Leadership at Hunton & Williams LLP is considering high-level comments on the draft regulation. It is thought that Peru may intend to issue the final regulation prior to the 34th International ...

On September 27, 2012, the German Federal Network Agency, the Bundesnetzagentur (or “BNetzA”), together with the German Federal Commissioner for Data Protection, published a guide on traffic data retention. The guide, which is aimed at telecom providers, includes a comprehensive chart that clarifies data retention periods for different types of services, such as telephone, SMS, Internet and email, and their respective types of traffic data (e.g., mobile identification numbers, IP addresses and International Mobile Equipment Identity data) based on the purposes for the data storage.

On September 27, 2012, the European Commission presented its new strategy on cloud computing, entitled “Unleashing the Potential of Cloud Computing in Europe.” The Commission’s strategy is outlined on a new webpage that includes a communication document and a more detailed staff working paper.

On September 27, 2012, the UK Information Commissioner’s Office (“ICO”) published guidance on complying with the requirements of the UK Data Protection Act 1998 (“DPA”) in the context of cloud computing services (the “Guidance”). In its Guidance, the ICO reminds data controllers that transferring personal data to the cloud does not absolve them of their compliance obligations under the DPA.

On July, 19, 2012, the Article 29 Working Party (the “Working Party”) issued an Opinion finding that the Principality of Monaco ensures an “adequate level of protection” for personal data within the meaning of the European Data Protection Directive (Article 25 of Directive 95/46/EC) (the “Directive”). Under the Directive, strict conditions apply to personal data transfers to countries outside the European Economic Area that are not considered to provide an “adequate” level of data protection.

Reporting from Israel, legal consultant Dr. Omer Tene writes:

In a detailed, 27-page decision (Admin. App. 24867-02-11 IDI Insurance v. Database Registrar), the Tel Aviv District Court recently upheld the validity of an instruction issued by the data protection regulator restricting financial institutions from using information about a third party’s attachment of their client’s account for the financial institution’s own purposes. The court held that the regulator is authorized to issue market instructions interpreting the law. The decision is likely to have far-reaching effects on the validity and weight given to a series of detailed guidance documents and market instructions published by the Israeli Law, Information and Technology Authority (“ILITA”) over the past two years. These include instructions regarding:

As of September 1, 2012, all personal data in Germany may only be processed and used for marketing purposes (including address trading) with the express opt-in consent of the affected individuals. Furthermore, the consent language must have been specifically drawn to the attention of the relevant individual as part of the terms and conditions governing the use of his or her personal data.

On August 21, 2012, the European Commission formally approved Uruguay’s status as a country providing “adequate protection” for personal data within the meaning of the European Data Protection Directive (Article 25(6) of Directive 95/46/EC). This follows the Article 29 Working Party’s earlier favorable Opinion issued in 2010, and takes into account certain interpretative assurances and clarifications provided by Uruguay. Accordingly, transfers of personal data from the EU to Uruguay may now take place without additional intergovernmental guarantees and in accordance with applicable data protection provisions.

On August 30, 2012, Taiwan’s Executive Yuan announced that the Personal Data Protection Act will become effective on October 1, 2012. In connection with the announcement, the Executive Yuan also proposed several amendments to certain controversial provisions to be discussed by the Legislative Yuan in September.

Reportedly, the amendments would include the following changes:

1. adding “medical records” as a type of sensitive personal data, and inserting exceptions to restrictions on the use of sensitive personal data (e.g., for public interest reasons or with the data ...

On August 15, 2012, Philippines President Benigno S. Aquino III signed the Data Privacy Act of 2012 passed earlier this year by the Philippine Senate and House of Representatives. Concerns about the creation of the National Privacy Commission and the criminal penalties associated with the Act delayed final enactment.

On August 8, 2012, the Federal Trade Commission settled with HireRight Solutions, Inc. (“HireRight”) for failure to comply with certain Fair Credit Reporting Act (“FCRA”) requirements. At first blush, the case may appear to be a simple FCRA matter – the FTC alleged that HireRight functioned as a consumer reporting agency when providing employment screening services to companies, but then failed to take steps to assure the accuracy of those reports and prevented consumers from dispute inaccurate information. Despite initial appearances, however, the case has broader geopolitical implications.

On July 24, 2012, Lisa J. Sotto, partner and head of the Global Privacy and Data Security Practice at Hunton & Williams LLP, gave a presentation on “Data Privacy in the Global Era” to the Western Independent Bankers Service Corporation. Sotto discussed U.S., EU and other international privacy laws, with a focus on two specific areas of interest, cloud computing and vendor management. 

On July 26, 2012, acting U.S. Secretary of Commerce Rebecca Blank announced that APEC’s Joint Oversight Panel has approved the United States’ request to participate in the APEC Cross-Border Privacy Rules System. The panel also approved the Federal Trade Commission’s participation as the system’s first privacy enforcement authority. The next step will be for the United States to nominate one or more accountability agents for the panel’s approval. Accordingly, the Department of Commerce will publish a Federal Register Notice in the coming days to provide guidance on how potential accountability agents may seek recognition. Once a U.S. accountability agent has been approved, American companies will be able to submit their cross-border privacy rules to be recognized as meeting the APEC standard.

Lisa Sotto, partner and head of the Global Privacy and Data Security Practice at Hunton & Williams, was interviewed on July 18, 2012 about her participation in the USAID-funded Judicial Reform and Government Accountability Project’s initiative to educate and provide data protection awareness to the Serbian government. As we reported last week, Sotto was invited to Belgrade to assist Rodoljub Sabic, Serbia’s Commissioner for Information of Public Importance and Personal Data Protection, and the JRGA Project. Sotto, who also is Chair of the U.S. Department of Homeland Security’s Data Privacy and Integrity Advisory Committee, spent last week advising the Commission on steps to enhance Serbia’s data protection framework.

On July 12, 2012, the National Telecommunications and Information Administration (“NTIA”) of the U.S. Department of Commerce initiated a multistakeholder process to develop guidance for transparency in the mobile environment. The NTIA has announced that they will schedule a second meeting in August, and encouraged small group discussions in the interim. This is not the first multistakeholder process to wrestle with transparency in the mobile environment, and those previous efforts – which date back almost a decade – may prove useful to such discussions.

On June 27, 2012, the Hong Kong Legislative Council passed a bill to amend the Personal Data (Privacy) Ordinance (the “Ordinance”). The amendment will become effective in phases. Most provisions will become effective on October 21, 2012, and the others will take effect on a day to be announced by publication in the Hong Kong Government Gazette.

In a July 9, 2012 press release issued by Rodoljub Sabic, Serbia’s Commissioner for Information of Public Importance and Personal Data Protection, the Commissioner commented on his meeting with Hunton & Williams’ Lisa Sotto, who was invited to Serbia by the Commissioner and the USAID-funded Judicial Reform and Government Accountability Project to provide advice and education on data protection issues.

In June, China’s National Internet Information Office and its Ministry of Industry and Information Technology jointly published draft amendments to the Regulation on Internet Information Services (the “Regulation”). The amendments update the Regulation to cover new issues related to the rapid development of Internet services in China since the Regulation first took effect on September 25, 2000. Although the Regulation originally contained no specific provisions directly pertaining to the protection of personal information, the draft amendments do address personal information protection issues.

On July 1, 2012, the Article 29 Working Party (the “Working Party”) adopted WP196 (the “Opinion”) setting out an analysis of the legal framework associated with cloud computing, as well as recommendations directed at both data controllers and data processors in the European Economic Area (the “EEA”). The Opinion identifies two data protection risks associated with the deployment of cloud computing services, namely: (1) lack of control over the data and (2) lack of information on data processing. Cloud computing and the range and geographical dispersion of the various parties involved also have raised significant uncertainty in terms of applicable law, which the Working Party previously analyzed in its Opinion 8/2010. Below is an overview of the different topics covered in the Opinion issued on July 1.

On June 27, 2012, the Conference of the German Federal and State Data Protection Commissioners (the “Conference”) issued a Resolution and a comprehensive guidance paper regarding data protection compliance with respect to smart metering.

Smart metering is the use of intelligent energy networks and meters for monitoring and billing purposes. According to the Resolution, smart meter systems help guarantee a sustainable energy supply in terms of resource efficiency, environmental friendliness and the efficient production, distribution and use of energy. The guidance paper issued by the Conference describes and analyzes the individual processing activities involved in the various uses of smart metering in light of German data protection law. In particular, the guidance paper describes the “use cases” in terms of the respective level of data protection involved.

On June 28, 2012, the UK Ministry of Justice outlined its negotiating position on the proposed EU Data Protection Regulation (the “Proposed Regulation”) in its published “Summary of Responses - Call for Evidence on Proposed EU Data Protection Legislative Framework” (the “Summary”).

The Call for Evidence sought to gain perspective and solicit feedback on how the Proposed Regulation would impact organizations and individuals in the UK. The responses received from the private sector were the most significant, which is not surprising given the potentially huge impact on business.

On June 6, 2012, the Article 29 Working Party (the “Working Party”) adopted WP 195 (the “Opinion”) setting out the requirements for Binding Corporate Rules (“BCRs”) for processors. Similar to WP 153, the Opinion lists the requirements to be covered in the processor BCRs application form and the BCRs document itself. The Opinion likely will be welcomed by processors, in particular those that provide large-scale, multinational data processing services.

On May 31, 2012, the UK Information Commissioner’s Office (“ICO”) published a draft anonymization code of practice (the “Code”) which will be open to public consultation until August 23, 2012. The purpose of the Code is to provide organizations with guidance on how personal data can be anonymized successfully, and how to assess the risk of individuals being identified using data that has been anonymized. The ICO also has launched a £15,000 invitation to tender to establish a network of experts to share best practices regarding anonymization.

On June 7, 2012, the Federal Trade Commission announced settlement agreements with two businesses that allegedly exposed customers’ sensitive personal information by allowing peer-to-peer (“P2P”) file-sharing software to be installed on their company computers and networks.

In its complaint against Franklin’s Budget Car Sales (“Franklin”), a Georgia automobile dealership that also provides financing services to its customers, the FTC alleged that Franklin failed to implement reasonable security measures to protect the consumer personal information that Franklin routinely collects in connection with its business. The FTC claimed that personal information of approximately 95,000 customers, including names, Social Security numbers, addresses, dates of birth, and drivers’ license numbers were made available and disclosed by a P2P application installed on a computer that was connected to Franklin’s computer network. In addition to alleging violations of Section 5 of the FTC Act, the FTC also claimed that Franklin violated the Gramm-Leach Bliley Act (“GLB”). This is the first FTC case against an auto dealer involving GLB violations. The FTC stated in its complaint that Franklin failed to implement reasonable security policies and procedures in violation of the GLB Safeguards Rule, and also failed to send consumers annual privacy notices and to provide the required opt-out mechanisms in violation of the GLB Privacy Rule.

On June 7, 2012, the Article 29 Working Party (the “Working Party”) adopted an Opinion analyzing the exemptions to the prior opt-in consent requirement for cookies. Although the Opinion focuses on cookies, the Working Party also notes that the same analysis applies to any technology allowing information to be stored or accessed on a user’s computer or mobile device.

On May 24, 2012, the German Federal Government submitted to the Parliament (Bundestag) a proposal to amend the Geodatenzugangsgesetz, a federal law concerning access to geographical data that has been in force since 2009.

The current law implements Directive 2007/2/EC of the European Parliament and of the Council of 14 March 2007 establishing an Infrastructure for Spatial Information in the European Community (“INSPIRE”). In addition to establishing a national geographical data infrastructure, the law aims to provide a legal framework for (1) accessing geographical data, geographical data services and metadata of organizations that maintain such data, and (2) using such data and services, in particular with regard to measures that may affect the environment. The law applies to federal agencies and corporations under public law.

On May 26, 2012, the United States government submitted its request to participate in the APEC Cross-Border Privacy Rules (“CBPRs”) system. The CBPRs system was endorsed by APEC leaders in November 2011. The protocol requires a participating economy to submit:

• A letter of intent to participate;
• Confirmation that a privacy enforcement agency in the economy is a participant in the Cross-Border Privacy Enforcement Arrangement;
• Notice that the economy intends to make use of at least one APEC-recognized accountability agency; and
• A description of the domestic laws and other legal mechanisms to give effect to the enforcement activities related to the activities of the accountability agent, which also must include an enforcement map.

On May 25, 2012, the UK Information Commissioner’s Office posted updated guidance on how to comply with amendments to EU data protection law requiring businesses to obtain consent from website visitors to store information on their computers and retrieve that information in the form of cookies. Last year, the ICO gave organizations a grace period expiring on May 26, 2012, to comply with the new cookie rules.

On May 4, 2012, Marty Abrams, President of the Centre for Information Policy Leadership at Hunton & Williams LLP (“the Centre”), interviewed British Columbia’s Information and Privacy Commissioner Elizabeth Denham during the Centre’s First Friday call. Commissioner Denham discussed the April 2012 release of “Getting Accountability Right with a Privacy Management Program,” new guidance issued by the Office of the Privacy Commissioner of Canada and the Offices of the Information and Privacy Commissioners of Alberta and British Columbia. The guidance addresses the Commissioners’ expectations for accountable privacy programs as required by Canadian law. Commissioner Denham described the guidance as “a tool to help organizations comply with the law,” providing “a roadmap to sound data governance,” with clear, practical terms for organizations to achieve accountability.

Hunton & Williams is pleased to announce that Chambers and Partners has ranked the firm in “Band 2” in its 2012 Chambers Europe guide for TMT: Information Technology: Belgium. Brussels managing partner Wim Nauwelaerts was recognized for his “very straightforward” and “no-nonsense approach.”

The Uruguayan Personal Data Control and Regulatory Unit has released the preliminary agenda for the 34th International Conference of Data Protection and Privacy Commissioners to take place October 23-24, 2012 in Punta del Este, Uruguay, at the Conrad Hotel. The conference theme is “Privacy and Technology in Balance.” The preliminary agenda with session descriptions and other information is available on the conference website at www.privacyconference2012.org.

As we previously reported, on May 3-4, 2012, the European data protection authorities’ (“DPAs’”) Spring Conference was held in Luxembourg, and the Data Protection Commissioners closed the conference by issuing a resolution on European data protection reform. In their resolution, the Data Protection Commissioners expressed general satisfaction with the ongoing modernization of the data protection frameworks of the European Union, the Council of Europe and the Organization for Economic Cooperation and Development.

Following a meeting in Sopot, Poland, on April 24, 2012, the International Working Group on Data Protection in Telecommunications (the “Working Group”), led by the Berlin Commissioner for Data Protection and Freedom of Information, issued a Working Paper that focuses on privacy and data protection issues related to the use of cloud computing in the international context. The Working Paper aims to reduce uncertainty regarding the definition of cloud computing and how the technology intersects with privacy, data protection and other legal issues.

On May 2, 2012, Australia’s Attorney General Nicola Roxon announced that the Australian government will introduce a bill to the Australian Parliament that will enact a number of the recommendations from the 2008 Law Reform Commission Report (ALRC Report 108) and reform privacy law in Australia. Discussion drafts of segments of the bill were considered by a Senate Committee in 2011. On May 4, Australian Privacy Commissioner Timothy Pilgrim presented an overview of the draft legislation at an event held during the iappANZ Privacy Awareness Week. Commissioner Pilgrim noted that the legislative package includes:

On May 3, 2012, Viviane Reding, Justice Commissioner and European Commission Vice-President, delivered a speech during the European data protection authorities’ (“DPAs’”) Spring Conference, which was held in closed sessions in Luxembourg. In her speech, Commissioner Reding discussed how the proposed EU Data Protection Regulation aimed to empower the DPAs and addressed some of the DPAs’ primary concerns with the reform.

On April 27, 2012, the Centre for Information Policy Leadership at Hunton & Williams LLP (the “Centre”) submitted comments to the latest Singapore consultation on proposed personal data protection legislation, the Personal Data Protection Act 2012. The consultation is being conducted by the Ministry of Information, Communications and the Arts and expired on April 30, 2012.

On April 19, 2012, the French Data Protection Authority (the “CNIL”) issued a press release detailing its enforcement agenda for 2012. In a report adopted March 29, 2012, the CNIL announced that it will conduct 450 on-site inspections this year, with particular focus on the specific themes described below. The CNIL also indicated that it will continue the work started in 2011 with at least 150 additional inspections related to video surveillance, especially with respect to surveillance in locations that are frequented by large numbers of individuals.

The UK Information Commissioner’s Office’s (“ICO”) has revised its statutory Code of Practice on assessment notices (the “Code”). The ICO first issued the Code in 2010, when its audit powers came into force. The Code has now been updated to reflect changes in auditing standards and practices.

Join Hunton & Williams at the 2012 Europe Data Protection Intensive, now hosted by the International Association of Privacy Professionals (“IAPP”) in London, April 25-26, 2012. Hunton & Williams privacy professionals will be featured speakers in the following sessions:

On April 17, 2012, the Office of the Privacy Commissioner of Canada and the Information and Privacy Commissioners of Alberta and British Columbia released guidance on their expectations for accountable privacy programs as required by Canadian law. The guidance, entitled “Getting Accountability Right with a Privacy Management Program,” discusses the building blocks of a comprehensive privacy program for businesses of all sizes. Although intended for a Canadian audience, the paper likely will have worldwide influence given recent privacy law developments around the globe.

On March 8, 2012, during the CeBIT international IT trade show, the German Federal Office for Information Security (Bundesamt für Sicherheit in der Informationstechnik or “BSI”) accepted the German Insurance Association’s application for certification of the “Trusted German Insurance Cloud,” a project that aims to establish a secure IT platform for the German insurance industry.  The parties previously had agreed to work together to develop practical requirements for a secure cloud solution, and to implement appropriate security measures in the “Trusted ...

On March 22, 2012, the Article 29 Working Party (the “Working Party”), adopted an Opinion analyzing the privacy and data protection law framework applicable to the use of facial recognition technology in online and mobile services, such as social networks and smartphones. The Working Party defines facial recognition as the “automatic processing of digital images which contain the faces of individuals for the purpose of identification, authentication/verification or categorization of those individuals.”