Privacy & Information Security Law Blog

On April 21, 2022, the United States, Canada, Japan, Singapore, the Philippines, the Republic of Korea and Chinese Taipei published a declaration (the “Declaration”) establishing the Global Cross-Border Privacy Rules Forum (the “Global CBPR Forum”). The Global CBPR Forum will establish an international certification system based on the existing APEC Cross-Border Privacy Rules (“CBPR”) and Privacy Recognition for Processors (“PRP”) Systems, enabling participation beyond APEC member economies. The Global CBPR and PRP Systems, as they will be known, are designed to support the free flow of data and effective data protection, and enable interoperability with other privacy frameworks.

On February 28, 2022, the Emirate of Dubai enacted Law No. 4 of 2022 on the Regulation of Virtual Assets (“VAL”) and established the Dubai Virtual Assets Regulatory Authority (“VARA”). By establishing a legal framework for businesses related to virtual assets, including crypto assets and non-fungible tokens (NFTs), this landmark law reflects Dubai’s vision to become one of the leading jurisdictions for entrepreneurs and investors of blockchain technology.

On April 7, 2022, the European Data Protection Board (the “EDPB”) released a statement on the announcement of a new Trans-Atlantic Data Privacy Framework (the “Statement”).

On March 24, 2022, the European Union unveiled the final text of the Digital Markets Act (the “DMA”). The final text of the DMA was reached following trilogue negotiations between the European Commission, European Parliament and EU Member States (led by the French Presidency at the European Council). The final text retains essentially the same features as the previous draft text but does include some notable changes.

On March 25, 2022, the European Commission and United States issued a joint statement announcing an agreement in principle on a new Trans-Atlantic Data Privacy Framework (the “Joint Statement”).

On February 22, 2022, the European Data Protection Board (the “EDPB”) adopted its final Guidelines 04/2021 on Codes of Conduct as tools for transfers (the “Guidelines”), following a public consultation that took place in 2021.

On March 16, 2022, Google announced the launch of its new analytics solution, “Google Analytics 4.” Google Analytics 4 aims, among other things, to address recent developments in the EU regarding the use of analytics cookies and data transfers resulting from such use.

On February 23, 2022, the European Commission adopted a Proposal for a Regulation designed to harmonize rules on the fair access to and use of data generated in the EU across all economic sectors (the “Data Act”). The Data Act is intended to “ensure fairness in the digital environment, stimulate a competitive data market, open opportunities for data-driven innovation and make data more accessible for all.” Importantly, the Data Act applies to all data generated in the EU, not only personal data, which is regulated by the General Data Protection Regulation (“GDPR”).

On February 15, 2022, the French Data Protection Authority (the “CNIL”) published its enforcement priority topics for 2022. Each year, the CNIL conducts numerous investigations in response to complaints, data breach notifications and ongoing events, or based on previously established enforcement priorities.

On February 10, 2022, the French Data Protection Authority (the “CNIL”) ruled the transfer of EU personal data from the EU to the U.S. through the use of the Google Analytics cookie to be unlawful. In its decision, the CNIL held that an organization using Google Analytics was in violation of the GDPR’s data transfer requirements. The CNIL ordered the organization to comply with the GDPR, and to stop using Google Analytics, if necessary.

On February 2, 2022, the Litigation Chamber of the Belgian Data Protection Authority (the “Belgian DPA”) imposed a €250,000 fine against the Interactive Advertising Bureau Europe (“IAB Europe”) for several alleged infringements of the EU General Data Protection Regulation (the “GDPR”), following an investigation into IAB Europe Transparency and Consent Framework (“TCF”).

On February 2, 2022, the Secretary of State placed the UK Information Commissioner’s Office's (“ICO's ”) final international data transfer agreement (“IDTA”) and international data transfer addendum to the European Commission’s standard contractual clauses (“SCCs”) for international data transfers (“Addendum”) before the European Parliament. The IDTA and Addendum are set to come into force on March 21, 2022, but the ICO advises that they are of use to organizations immediately. The ICO also has stated that it intends to publish additional guidance on use of the IDTA and Addendum.

View the ICO’s final drafts of the IDTA and Addendum.

Organizations increasingly use artificial intelligence- (“AI”) driven solutions in their day-to-day business operations. Generally, these AI-driven solutions require the processing of significant amounts of personal data for the AI model’s own training, which often is not the purpose for which the personal data originally was collected. There is a clear tension between such further use of vast amounts of personal data and some of the key data protection principles outlined in EU privacy regulations. On the occasion of Data Privacy Day 2022, Hunton privacy attorneys ...

On November 14, 2021, the Cyberspace Administration of China (“CAC”) released for public comment its draft Regulations on Network Data Security Management (the “Draft Regulations”). The Draft Regulations are intended to implement portions of three existing laws – the Cybersecurity Law (“CSL”), the Data Security Law (“DSL”) and the Personal Information Protection Law (“PIPL”) (together, the “Three Laws”) – by providing guidance on certain provisions and establishing specific requirements for implementing certain principles contemplated in the Three Laws. In addition, the Draft Regulations add new requirements related to data processing activities. Once effective, the Draft Regulations will impose even greater compliance obligations on companies than the PIPL.

The Austrian data protection authority (the “Austrian DPA”) recently published a decision in a case brought against an Austrian website provider and Google by the non-governmental organization co-founded by privacy activist Max Schrems, None of Your Business (“NOYB”). The Austrian DPA ruled that the use of Google Analytics cookies by the website operator violates both Chapter V of the EU General Data Protection Regulation (“GDPR”), which establishes rules on international data transfers, and the Schrems II judgment of the Court of Justice of the European Union.

On January 12, 2022, the French Data Protection Authority (the “CNIL”) published guidelines on the re-use of personal data by data processors for their own purposes (such as product improvement or the development of new products and services) under the EU General Data Protection Regulation (“GDPR”) (the “Guidelines”). This post outlines key takeaways from the Guidelines.

On January 5, 2022, the European Data Protection Supervisor (“EDPS”) issued a decision against the European Parliament (“EP”). The case resulted from a complaint submitted by certain Members of the European Parliament (“MEPs”) who alleged that the Parliament’s use of cookies violated data protection law, including requirements regarding the transfer of personal data outside of the EU. The EDPS is responsible for overseeing compliance of data protection rules by the EU institutions.

On December 31, 2021, the French Data Protection Authority (the “CNIL”) imposed a €150,000,000 fine on Google and a €60,000,000 fine on Facebook (now Meta) for violations of French rules on the use of cookies.

In a letter addressed to certain members of the European Parliament (“MEPs”), European Commissioner for Justice Reynders refuted some of the criticism that has been raised against the Irish Data Protection Commissioner (“DPC”).

Stephen Mathias from Kochhar & Co. reports that on December 16, 2021, the Indian Joint Parliamentary Committee (the “JPC”) submitted its report on India’s draft Data Protection Bill (the “Bill”). The Bill is now likely to be passed by Parliament in its next session, beginning in February 2022, and likely will enter into force in the first half of 2022. In its report, the JPC recommended a phased approach to implementing the law, beginning with the appointment of various government officers, such as the Data Protection Authority (“DPA”), with full implementation of the law to be completed within 24 months. The JPC’s report also contained a revised draft of the Bill. Certain key aspects of the revised Bill are summarized below.

On December 20, 2021, the UK Information Commissioner’s Office (“ICO”) launched a public consultation on its regulatory approach. The consultation involves three separate documents – the ICO’s Regulatory Action Policy (“RAP”), Statutory Guidance on the ICO’s Regulatory Action, and Statutory Guidance on the ICO’s PECR Powers. The RAP sets forth the ICO’s risk-based approach to regulatory action and explains the factors the ICO considers before taking regulatory action, how the ICO works with other regulators, and enforces the legislation for which it is responsible. Together, the three documents illustrate how the ICO aims to enforce information rights for data subjects in the UK.

On December 15, 2021, the European Parliament adopted its position on the proposal for a Digital Markets Act (“DMA”), ahead of negotiations with the Council of the European Union.

The DMA introduces new rules for certain core platforms services acting as “gatekeepers,” (including search engines, social networks, online advertising services, cloud computing, video-sharing services, messaging services, operating systems and online intermediation services) in the digital sector and aims to prevent them from imposing unfair conditions on businesses and consumers and to ensure the openness of important digital services.

On December 17, 2021, the European Commission announced that it had adopted its adequacy decision on the Republic of Korea. The adequacy decision allows for the free flow of personal data between the EU and Korea, without any further need for authorization or additional transfer tool. The adequacy decision also covers transfers of personal data between public authorities.

On December 6, 2021, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth LLP published a white paper on “Bridging the DMA and the GDPR – Comments by the Centre for Information Policy Leadership on the Data Protection Implications of the Draft Digital Markets Act” (the “White Paper”).

On  November 27, 2021, the UAE Cabinet Office enacted its first federal Personal Data Protection Law (Federal Decree Law No. 45 of 2021, the “UAE Data Protection Law”). The UAE Data Protection Law will come into force on January 2, 2022.

On November 30, 2021, the European Commission issued a press release indicating that the European Parliament and the Council of the EU (i.e., representatives of EU Member States) reached political agreement on the proposed EU Data Governance Act. The political agreement now will be subject to final approval by the European Parliament and the Council of the EU.

On November 18, 2021, the European Data Protection Board (“EDPB”) released a statement on the Digital Services Package and Data Strategy (the “Statement”). The Digital Services Package and Data Strategy is a package composed of several legislative proposals, including the Digital Services Act (“DSA”), the Digital Markets Act (“DMA”), the Data Governance Act (“DGA”), the Regulation on a European approach for Artificial Intelligence (“AIR”) and the upcoming Data Act (expected to be presented shortly). The proposals aim to facilitate the further use and sharing of personal data between more public and private parties; support the use of specific technologies, such as Big Data and artificial intelligence (“AI”); and regulate online platforms and gatekeepers.

On November 22, 2021, according to India Today, the Indian Joint Parliamentary Committee (the “JPC”) responsible for reviewing the Personal Information Protection Bill 2019 (“PDPB”) issued its report on the proposed law. The report comes nearly two years after the bill was first referred to the JPC. The JPC’s report will likely be presented with the PDPB 2019 in the Winter Session of Parliament, which begins on November 29, 2021. If passed, the PDPB would constitute the first comprehensive data protection law in India ...

On November 19, 2021, the European Data Protection Board (“EDPB”) published its draft Guidelines 05/2021 (the “Guidelines”) on the interplay between the application of Article 3 of the EU General Data Protection Regulation (“GDPR”), which sets forth the GDPR’s territorial scope, and the GDPR’s provisions on international data transfers. The Guidelines aim to assist organizations subject to the GDPR in identifying whether a data processing activity constitutes an international data transfer under the GDPR, as the GDPR does not define the term.

On November 14, 2021, the U.S. Department of the Treasury announced a bilateral cybersecurity partnership with the Israeli Ministry of Finance “to protect critical financial infrastructure and emerging technologies” and combat the use of ransomware. The initiative includes the launch of a U.S.-Israeli Task Force on Fintech Innovation and Cybersecurity (the “Task Force”), which seeks to advance the twin goals of encouraging fintech innovation while protecting against cyber threats from nation-state and criminal actors.

On November 5, 2021, IAB Europe (“IAB EU”) announced that, in the coming weeks, the Belgian Data Protection Authority plans to share with other data protection authorities a draft ruling on the IAB EU Transparency & Consent Framework (“TCF”). The TCF is a GDPR consent solution built by IAB EU that has become a widely used approach to collecting consent to cookies under the GDPR. The draft ruling is expected to find that the TCF does not comply with the GDPR, in part because IAB EU acts as a controller, and the digital signals the TCF creates to capture individuals’ consent to cookies are personal data under the GDPR. Because IAB EU does not consider itself a controller with respect to the TCF, it does not currently comply with the GDPR’s controller obligations.

On November 10, 2021, the UK Supreme Court issued its long-awaited judgment in the Lloyd v Google case. The decision is expected to make it difficult in practice for a future class action lawsuit that is brought on behalf of a class of individuals who have not actively opted in to being represented by the lead claimant to proceed under UK law.

On November 8, 2021, law enforcement agencies in both the United States and European Union announced that a series of actions, including a number of arrests, were taken against the Russia-linked ransomware group, “REvil.” The U.S. Department of Justice (the “DOJ”) unsealed documents relating to an August indictment against two individuals in Dallas for alleged involvement in REvil ransomware attacks against several U.S. businesses. The European authorities, Europol, also announced that police in Romania and South Korea had arrested five people alleged to be REvil affiliates.

On October 28, 2021, the European Parliament’s Committee on Industry, Research and Energy adopted a draft directive on cybersecurity (“NIS2 Directive”). The NIS2 Directive will broaden the scope of the existing NIS Directive to apply to “important sectors,” such as waste management, postal services, chemicals, food, medical device manufacturers, digital providers and producers of electronics, in addition to “essential sectors.” The NIS2 Directive imposes specific cybersecurity requirements relating to incident response, supply chain security, encryption and vulnerability disclosure obligations. The NIS2 Directive also aims to establish better cooperation and information sharing between EU Member States, and create a common European vulnerability database.

On October 29, 2021, the Cyberspace Administration of China (“CAC”) released for public comment “Draft Measures on Security Assessment of Cross-border Data Transfer” (“Draft Measures”). The CAC, in its third legislative attempt to build a cross-border data transfer mechanism in China, issued the Draft Measures three days before the November 1, 2021 effective date of the Personal Information Protection Law (“PIPL”).

On October 13, 2021, the European Data Protection Board (“EDPB”) adopted Guidelines 10/2020 on restrictions under Article 23 of the EU General Data Protection Regulation (“GDPR”) (the “Guidelines”) following public consultation. Article 23 of the GDPR permits EU Member States to impose restrictions on data subject rights as long as the restrictions respect the essence of the fundamental rights and freedoms of individuals, and are necessary and proportionate measures in a democratic society to safeguard, for example, national security, defense or public security. The data subject rights to which the restrictions may apply are those set out in Articles 12-22 (e.g., rights of access, erasure), Article 34 (communication of a data breach to individuals) and Article 5 (the data processing principles) to the extent that its provisions correspond to data subject rights.

On September 29, 2021, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth published a paper on the Draft ePrivacy Regulation (“ePR”), in the context of the Trilogue Discussions between the EU Commission, EU Council and EU Parliament (the “Paper”).

The Irish Data Protection Commissioner (“DPC”) has submitted a draft decision on Facebook Ireland Limited’s (“Facebook”) data protection compliance to other European regulators under the cooperation mechanism of the EU General Data Protection Regulation (“GDPR”) (the “Draft Decision”). The DPC proposes a fine between €28 and €36 million (i.e., up to $42 million) for infringements of the transparency obligations under the GDPR, specifically with respect to the legal basis upon which Facebook relied. In addition, the Draft Decision proposes imposing an order on Facebook to bring its terms of service and Data Policy into compliance within three months. However, the DPC indicates in its Draft Decision that Facebook is permitted to rely on contractual necessity as a legal basis for its personalized advertising, taking the view that this constitutes a core element of Facebook’s service.

On October 12, 2021, the Oxford County Court determined that a homeowner had breached the Data Protection Act 2018 (“DPA”) and UK General Data Protection Regulation (“UK GDPR”) by using Ring security cameras around his property. In Dr Mary Fairhurst v Mr Jon Woodard, Fairhurst claimed harassment, nuisance and breach of UK data protection law based on her former neighbor, Woodard’s, use of security cameras and lights around his property. While the claim in nuisance failed, the judge found for the claimant on the claims of harassment and breach of data protection law.

On September 27, 2021, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth published a white paper on the “GDPR Enforcement Cooperation and the One-Stop-Shop (“OSS”) - Learning from the First Three Years” (the “Paper”). The Paper identifies the challenges faced by the OSS, defines CIPL’s position, and proposes possible solutions to improve the OSS mechanism, taking into account the European Data Protection Board’s (“EDPB”) recent work and decisions by the Court of Justice of the European Union (“CJEU”).

On October 6, 2021, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth published a white paper on “Organizational Accountability in Data Protection Enforcement – How Regulators Consider Accountability in their Enforcement Decisions” (the “Paper”).

On September 27, 2021, the transition period allowing companies to continue using the old EU Standard Contractual Clauses (“SCCs”) for new transfers from the EU to a third country ended. Companies entering into new transfer agreements incorporating the SCCs must now use those published by the European Commission on June 4, 2021 (the “new SCCs”). Transfers from the UK that rely on SCCs must continue to use the old SCCs.

On September 27, 2021, the European Data Protection Board (“EDPB”) announced that it had adopted an opinion on the European Commission’s draft adequacy decision for the Republic of Korea (the “Opinion”).

On September 27, 2021, the European Data Protection Board (the “EDPB”) announced that it established a taskforce to coordinate the response to complaints filed with several EU data protection authorities (“DPAs”) by the non-governmental organization None of Your Business (“NOYB”) in relation to cookie banners.

On September 22, 2021, the Canadian province of Quebec enacted a new privacy law, which will impose obligations beyond what is currently required under Canada’s federal privacy law. Most of the new law’s requirements will take effect in September 2023, but some will take effect earlier (in 2022) or later (2024).

On September 21, 2021, the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) issued an Updated Advisory on Potential Sanctions Risks for Facilitating Ransomware Payments (the “Updated Advisory”) on the sanctions risks associated with facilitating ransomware payments.

On September 10, 2021, the UK Government Department for Digital, Culture, Media & Sport (“DCMS”) launched a consultation on its proposed reforms to the UK data protection regime. The consultation reflects DCMS’s effort to deliver on Mission 2 of the National Data Strategy, which is “to secure a pro-growth and trusted data regime in the UK.” Organizations are encouraged to provide input on a range of data protection proposals, some of which are outlined below. The consultation will close on November 19, 2021, and the Centre for Information Policy Leadership (“CIPL”) will consult with members to prepare a formal response to the consultation.

The Centre for Information Policy Leadership (“CIPL”), a global privacy and security think tank founded in 2001 by leading companies and Hunton Andrews Kurth LLP, is celebrating 20 years of working with industry leaders, regulatory authorities and policymakers to develop global solutions and best practices for privacy and responsible data use.

On August 19, 2021, the Belgian Council of State confirmed a decision of the regional Flemish Authorities to contract with an EU branch of a U.S. company using Amazon Web Services (“AWS”).

This week, the United Arab Emirates (“UAE”) Minister of State for Artificial Intelligence, Digital Economy and Remote Work Applications (the “Minister”) announced that the UAE would introduce a new federal data protection law (“Data Protection Law”), the first federal law of its kind in the UAE. The Data Protection Law is one of the initiatives to be implemented under the recently published “Principles of the 50,” a charter of 10 strategic principles that will guide the political, economic and social development of the UAE for the next 50 years.

On August 27, 2021, the Federal Data Protection and Information Commissioner (“Swiss DPA”) announced that the new EU Standard Contractual Clauses (the “SCCs”) may be relied on to legitimize transfers of personal data from Switzerland to countries without an adequate level of data protection, provided that the necessary amendments and adaptations are made for use under Swiss data protection law.

On September 2, 2021, Ireland’s Data Protection Commission (“DPC”) announced a fine of €225 million ($266 million) against WhatsApp Ireland Ltd (“WhatsApp”) for failure to meet the transparency requirements of Articles 12-14 of the EU General Data Protection Regulation (“GDPR”). This fine represents a more than four-fold increase in the €30-50 million fine that was proposed in a draft decision issued by the DPC in December 2020. Due to the cross-border nature of WhatsApp’s data processing activities, the DPC’s draft decision was reviewed by other relevant supervisory authorities, as required by the cooperation and consistency mechanism under Chapter VII of the GDPR. Eight other EU regulators objected to the DPC’s draft decision. Their objections were referred to the European Data Protection Board (“EDPB”), in accordance with the dispute resolution procedure under Article 65(1)(a) of the GDPR, after the DPC failed to reach a consensus with the objecting regulators.

On September 1, 2021, the South Korean Personal Information Protection Commission (“PIPC”) issued fines against Netflix and Facebook for violations of the Korean Personal Information Protection Act (“PIPA”).

On August 19, 2021, the UK Information Commissioner’s Office (“ICO”) approved the criteria for three certification schemes, as required under Article 42(5) of the UK General Data Protection Regulation (“UK GDPR”). Certification schemes are one method for organizations to demonstrate compliance with the UK GDPR.

On August 12, 2021, the UK Information Commissioner’s Office (“ICO”) published a call for views on data protection and employment practices. The ICO intends to update its employment practices code and associated guidance, originally produced under the Data Protection Act 1998, which has now been replaced by the UK General Data Protection Regulation (“UK GDPR”) and Data Protection Act 2018 (“DPA 2018”). The ICO is requesting responses from large and small employers, workers, volunteers, trades unions, employment dispute resolution bodies, recruitment agencies, professional and trade bodies, and suppliers of employment technology solutions.

On August 26, 2021, the UK Department of Culture, Media and Sport (“DCMS”) made news by publishing a document indicating its intent to begin making adequacy decisions for UK data transfers to foreign jurisdictions and by announcing its preferred candidate for the position of new UK Information Commissioner.

On August 20, 2021, China’s 13^th Standing Committee of the National People’s Congress passed the Personal Information Protection Law (the “PIPL”). As we previously reported, the PIPL is China’s first comprehensive data protection law. It is modeled, in part, on other jurisdictions’ omnibus data protection regimes, including the EU General Data Protection Regulation (“GDPR”). The PIPL will become effective on November 1, 2021. Below are some of the key provisions under the PIPL.

On August 9, 2021, the UK First-Tier Tribunal (General Regulatory Chamber) (“FTT”) reduced a fine imposed by the UK Information Commissioner’s Office (“ICO”) against Doorstep Dispensaree Ltd (“DDL”) from £275,000 to £92,000, a reduction of approximately two thirds. DDL, which supplies medicines to customers and care homes, was fined in December 2019 for failure to comply with the EU General Data Protection Regulation (“GDPR”). The ICO also issued an Enforcement Notice, requiring DDL to take certain actions to bring its processing into compliance.

Laura Liguori of Portolano Cavallo reports that on June 10, 2021, the Italian Data Protection Authority (Garante or “DPA”) adopted a new version of its guidelines for cookies and other tracking mechanisms (the “Guidelines”).

On July 30, 2021, the UK High Court handed down its judgment in the case of Warren v DSG Retail Ltd [2021] EWHC 2168 (QB), determining that the claimant could not seek damages on the basis of misuse of personal information, breach of confidence or common law negligence following a data breach.

On August 2, 2021, the Italian Data Protection Authority (Garante per la protezione dei dati personali, “Garante”) announced that it had levied a €2,500,000 fine on Deliveroo Italy s.r.l. for the unlawful processing of personal data of approximately 8,000 Deliveroo riders, and various infringements of the EU Genera Data Protection Regulation (the “GDPR”).

On July 29, 2021, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted its response to the European Commission’s Consultation on the Draft Artificial Intelligence Act (the “Act”). Feedback received as part of this consultation will feed into discussions with the European Parliament and the European Council as the proposal makes its way through the EU legislative process.

On July 16, 2021, the Luxembourg data protection authority (Commission nationale pour la protection des donées, “CNPD”) imposed a record-breaking €746 million fine on Amazon Europe Core S.à.r.l. for alleged violations of the EU General Data Protection Regulation (“GDPR”). The CNPD also ordered Amazon to revise certain of its practices. As Amazon has its EU headquarters in Luxembourg, the CNPD acts as Amazon’s lead supervisory authority in the EU.

On June 29, 2021, the UK Department for Digital, Culture, Media and Sport (“DCMS”) published guidance for businesses on child online safety, which includes guidance on data protection and privacy, age-appropriate content, positive user interactions, and protecting children from online sexual exploitation and abuse.

On July 22, 2021, the Dutch Data Protection Authority (“Dutch DPA”) announced that it had imposed a €750,000 fine on TikTok for violating the privacy of young children namely for the company’s alleged lack of transparency.

On July 2, 2021, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth published a white paper on How the Legitimate Interest Ground for Processing for Processing Enables Responsible Data Use and Innovation (the “Paper”). The Paper explains the growing importance of the legitimate interests legal basis for organizations, whether for routine or more complex and innovative data processing activities. It provides recommendations on how this legal basis should be interpreted, used and applied to unlock the value of data in today’s global connected world. Finally, the Paper includes examples of data processing activities where organizations currently rely on the legitimate interests legal basis, illustrated by 16 case studies that describe how organizations balance the legitimate interest of the controller and individuals’ rights and freedoms.

In an article originally published on Practical Law, and reproduced with the permission of the publishers, Hunton Andrews Kurth London partner Bridget Treacy discusses the European Commission’s long-awaited, and now finalized, standard contractual clauses (“SCCs”) for international transfers of personal data made under the EU General Data Protection Regulation (“GDPR”).

On July 6, 2021, it was reported that British Airways (“BA”), which is owned by International Consolidated Airlines Group, S.A, had settled a UK class action lawsuit relating to its 2018 data breach, in which approximately 430,000 data subjects were affected. The UK Information Commissioner’s Office (“ICO”) previously fined BA £20 million for the same breach, after finding that BA had failed to process the personal data of its customers in a manner that ensured appropriate security, as required under Article 5(1)(f) and Article 32 of the EU General Data Protection Regulation. This amount was significantly reduced from the ICO’s proposed fine of more than £183 million.

On June 30, 2021, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted its comments on the Irish Data Protection Commissioner’s (“DPC”) consultation on its Draft Regulatory Strategy for 2021-2026, in which the DPC sets out its vision for the next five years.

On June 28, 2021, the European Commission (the “Commission”) adopted two adequacy decisions for the United Kingdom, one under the General Data Protection Regulation (“GDPR”) and another under the Law Enforcement Directive. Their adoption means organizations in the EU can continue to transfer personal data to organizations in the UK without restriction, and will not need to rely upon data transfer mechanisms, such as the EU Standard Contractual Clauses, to ensure an adequate level of protection. The adoption comes just before the conditional interim regime under the EU-UK Trade and Cooperation Agreement, under which data could flow freely from the EU to the UK, was set to expire on June 30, 2021.

On June 21, 2021, following a public consultation, the European Data Protection Board (“EDPB”) published the final version of its recommendations on supplementary measures in the context of international transfer safeguards, such as Standard Contractual Clauses (“SCCs”) (the “Recommendations”).

On June 16, 2021, the UK Government’s Taskforce on Innovation, Growth and Regulatory Reform published an independent report containing recommendations to the Prime Minister on how the UK can reshape its approach to regulation in the wake of Brexit (the “Report”). Among wide-ranging proposals across a range of areas, the Report recommends replacing the UK General Data Protection Regulation (“UK GDPR”) with a new UK Framework of Citizen Data Rights. The proposed approach would aim to give individuals greater control over their personal data while also allowing increased data flows and driving growth in the digital economy. The Report will be considered by the Government’s Better Regulation Committee.

After two rounds of public comments, the Data Security Law of the People’s Republic of China (the “DSL”) was formally issued on June 10, 2021, and will become effective on September 1, 2021.

Compared to previous drafts of the law, the final version of the DSL differs with respect to:

• establishing a work coordination mechanism and clarifying the duties of each governmental authority;
• establishing an administration system for state core data;
• encouraging data development and use to make public service more intelligent and requiring consideration of the needs of the elderly and people with disabilities when providing intelligent public services;
• protecting the security of government data; and
• increasing the punishment dynamics for violations of the law. 

On June 15, 2021, the Court of Justice of the European Union (the “CJEU”) released its judgment in case C-645/19 of Facebook Ireland Limited, Facebook Inc., Facebook Belgium BVBA v. the Belgian Data Protection Authority (“Belgian DPA”). We previously reported on the background of the case and the Advocate General’s opinion.

On June 11, 2021, the Belgian Data Protection Authority (“Belgian DPA”) released its 2020 Annual Report (the “Report”). Notably in 2020, the Belgian DPA focused on the supervision of initiatives to fight the COVID-19 pandemic involving data processing, while not losing sight of its other priorities, as identified in its Strategic Plan 2020-2025.

Due to the increased awareness of the importance of the protection of personal data, 2020 had a significant increase in the number of complaints, which were up 290.64%, and data breach notifications, which were up 25.09%, received by the Belgian DPA.

On May 25, 2021, the Grand Chamber of the European Court of Human Rights handed down its judgement in the case of Big Brother Watch and Others v. the United Kingdom, determining that the former surveillance regime in the UK violated Article 8 of the European Convention on Human Rights (“ECHR”), i.e., the right to respect for private and family life.

On June 4, 2021, the European Commission published the final version of the implementing decision on standard contractual clauses for transfers of personal data to third countries under the EU General Data Protection Regulation (“GDPR”), as well as the final version of the new standard contractual clauses (the “SCCs”). The European Commission had previously published draft versions of the implementing decision and the SCCs in November 2020.

On May 25, 2021, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth LLP submitted its response (in English and in Mandarin) to the Standing Committee of the National People’s Congress (“NPC”) of the People’s Republic of China on the updated version of the Draft Personal Information Protection Law (“PIPL”).

On May 20, 2021, the Belgian Data Protection Authority (“Belgian DPA”), as the lead authority (in collaboration with two co-reviewing authorities), announced that it had approved the EU Data Protection Code of Conduct for Cloud Service Providers (the “EU Cloud CoC”). The EU Cloud CoC is the first transnational EU code of conduct since the entry into force of the EU General Data Protection Regulation (the “GDPR”).

On May 10, 2021, the Ecuadorian National Assembly unanimously approved the Organic Law on Data Protection (the “Data Protection Law”), which President Moreno is expected to sign.

On April 29, 2021, China issued a second version of the draft Personal Information Protection Law (“Draft PIPL”). The Draft PIPL will be open for public comments until May 28, 2021.

While the framework of this version of the Draft PIPL is the same as the prior version issued on October 21, 2020, below we summarize the material changes in the second version of the Draft PIPL.

On April 29, 2021, China issued a second draft version of the Data Security Law (“Draft DSL”). The Draft DSL will be open for public comments until May 28, 2021.

While the framework of this version of the Draft DSL is the same as the prior version issued on July 3, 2020, below we summarize the material changes in the second version of the Draft DSL.

On April 23, 2021, the National Information Security Standardization Technical Committee of China published a draft standard (in Chinese) on Security Requirements of Facial Recognition Data (the “Standard”). The Standard, which is non-mandatory, details requirements for collecting, processing, sharing and transferring data used for facial recognition.

On April 9, 2021, the First-Tier Tribunal of the General Regulatory Chamber stayed proceedings in Ticketmaster UK Limited’s (“Ticketmaster’s”) appeal against a fine issued by the UK Information Commissioner’s Office (“ICO”) until 28 days after a judgment in civil litigation brought by 795 customers against Ticketmaster. The group action, which relates to the breach for which Ticketmaster was fined by the ICO, is currently before the High Court in England. As a result of the stay in proceedings, the appeal likely will not be heard before the Tribunal until mid to late 2023.

On April 8, 2021, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted comments in response to the Ministry of Public Security (“MPS”) of Vietnam’s Draft Decree on Personal Data Protection (“Draft Decree”).

On March 15, 2021, China’s State Administration for Market Regulation (“SAMR”) issued Measures for the Supervision and Administration of Online Transactions (the “Measures”) (in Chinese). The Measures implement rules for the E-commerce Law of China and provide specific rules for addressing registration of an online operation entity, supervision of new business models (such as social e-commerce and livestreaming), platform operators’ responsibilities, protection of consumers’ rights and protection of personal information.

On March 30, 2021, the European Commission (the “Commission”) announced the successful conclusion of the adequacy talks with the Republic of Korea.

On March 15, 2021, the state Data Protection Authority of Bavaria (“Bavarian DPA”) declared the use of U.S. e-mail marketing service Mailchimp by a fashion magazine (acting as controller) in Bavaria impermissible due to non-compliance with Schrems II mitigation steps in relation to the transfer of e-mail addresses to Mailchimp in the U.S.

On March 12, 2021, the Cyberspace Administration of China released Provisions on the “Scope of Necessary Personal Information Required for Common Types of Mobile Internet Applications” (the “Provisions”) (available here in Chinese).

On March 19, 2021, the Secretary of State for Digital, Culture, Media & Sport (“DCMS”) signed a Memorandum of Understanding (“MoU”) with the UK Information Commissioner’s Office (the “ICO”) with respect to new UK adequacy assessments following the UK’s departure from the European Union. The MoU sets out how DCMS and third countries will negotiate adequacy decisions, referred to under the MoU as “adequacy regulations”. These permit the free transfer of personal data collected in the UK to the relevant “adequate” jurisdiction.

On March 12, 2021, the European Data Protection Board (“EDPB”) published its Guidelines 01/2021 on Virtual Voice Assistants for consultation (the “Guidelines”). Virtual voice assistants (“VVAs”) understand and execute voice commands or coordinate with other IT systems. These tools are available on most smartphones and other devices and collect significant amounts of personal data, such as through user commands. In addition, VVAs require a terminal device equipped with a microphone and transfer data to remote service. These activities raise compliance issues under both the General Data Protection Regulation (“GDPR”) and the e-Privacy Directive.

On March 2, 2021, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted its response to the European Data Protection Board (“EDPB”) consultation on draft guidelines on examples regarding data breach notification (the “Guidelines”). The Guidelines were adopted on January 14, 2021 for public consultation.

On March 1, 2021, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted a response to the new Brazilian data protection authority’s (Agência Nacional de Proteção de Dados, the “ANPD’s”) public consultation (in Portuguese) on the impact of the Brazilian data protection law (Lei Geral de Proteção de Dados, the “LGPD”) on small and medium-sized enterprises (“SMEs”), which will inform the ANPD’s upcoming special rules for SMEs.

The concept of regulatory sandboxes has gained traction in the data protection community. Since the UK Information Commissioner’s Office (the “ICO”) completed its pilot program of regulatory sandboxes in September 2020, two European Data Protection Authorities (“DPAs”) have created their own sandbox initiatives following the ICO’s framework.

On February 23, 2021, the Centre for Information Policy Leadership at Hunton Andrews Kurth hosted a webinar on China’s Data Privacy Landscape and Upcoming Legislation.

In the February 2021 issue of the Data Protection Leader, Hunton partner Dora Luo discusses China’s draft Personal Information Protection Law (“Draft PIPL”) (in Chinese) in the context of other comprehensive data protection frameworks, such as the EU General Data Protection Regulation (“GDPR”).

On February 10, 2021, the European Data Protection Supervisor (“EDPS”) published two opinions on the European Commission’s proposals for a Digital Services Act (“DSA”) and a Digital Markets Act (“DMA”). The proposed DSA and DMA are part of a set of measures announced in the 2020 European Strategy for Data and have two main goals: (1) creating a safer digital space in which the fundamental rights of all users of digital services are protected, and (2) establishing a level playing field to foster innovation, growth and competitiveness in the European Single Market and globally.

On February 5, 2020, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted a response to the European Commission’s (the “Commission’s”) public consultation on the Commission’s Proposal for a Regulation on European Data Governance (the “Data Governance Act,” or “DGA”). This proposal is the first set of initiatives announced under the broader European Data Strategy.

On February 10, 2021, representatives of the EU Member States reached an agreement on the Council of the European Union’s (the “Council’s”) negotiating mandate for the draft ePrivacy Regulation, which will replace the current ePrivacy Directive. The text approved by the EU Member States was prepared under Portugal’s Presidency and will form the basis of the Council’s negotiations with the European Parliament on the final terms of the ePrivacy Regulation.

On January 28, 2021, international Data Privacy Day, the newly formed Brazilian data protection authority (Agência Nacional de Proteção de Dados, the “ANPD”) published its regulatory strategy for 2021-2023 and work plan for 2021-2022 (in Portuguese).