Privacy & Information Security Law Blog

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 30, 2012, the Federal Trade Commission announced the issuance of an interim final rule (“Interim Final Rule”) that makes the definition of “creditor” in the FTC’s Identity Theft Red Flags Rule (“Red Flags Rule”) consistent with the definition contained in the Red Flag Program Clarification Act of 2010.

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 29, 2012, the Federal Communications Commission (“FCC”) issued a declaratory ruling finding that certain text messages businesses send to confirm a consumer’s request to opt out of text message programs do not violate a federal prohibition on sending text messages without prior express consent. This prohibition has spawned class actions against companies that have followed the provisions in the Mobile Marketing Association’s U.S. Consumer Best Practices and other industry guidelines that require companies to send a confirmatory text message in response to a consumer’s opt-out request. The FCC’s finding is limited to sending confirmatory text messages under the following conditions:

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 26, 2012, the Department of Health and Human Services’ Office for Civil Rights (“OCR”) published guidance on the two methods for de-identifying protected health information (“PHI”) in accordance with the HIPAA Privacy Rule. The guidance, which was required by the Health Information Technology for Clinical and Economic Health (“HITECH”) Act, has been developed over several years by OCR in collaboration with healthcare entities and other industry experts and builds upon the discussions from a workshop on de-identification that took place in March 2010.

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.