Privacy & Information Security Law Blog

On December 12, 2013, Advocate-General Cruz Villalón of the European Court of Justice (“ECJ”) issued his Opinion on the compatibility of the EU Data Retention Directive 2006/24/EC (the “Data Retention Directive”) with the Charter of Fundamental Rights of the European Union (the “EU Charter”).

As we previously reported, on October 21, 2013, the European Parliament approved its Compromise Text of the proposed EU General Data Protection Regulation (the “Proposed Regulation”). Hunton & Williams has now published an analysis of these proposals.

On October 21, 2013, the European Parliament approved its Compromise Text of the proposed EU General Data Protection Regulation (the “Proposed Regulation”). The approval follows months of negotiations between the various parliamentary committees. The European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (“LIBE”) has been in charge of working toward an agreement on the Compromise Text in the European Parliament.

On October 2, 2013, the Article 29 Working Party (the “Working Party”) issued a Working Document providing guidance on how to obtain consent for the use of cookies and similar technologies in compliance with EU legal requirements (“Working Document”).

At its meeting on October 7, 2013, the Council of the European Union voiced support for the “one-stop-shop” mechanism in the draft General Data Protection Regulation (the “Regulation”). The “one-stop-shop” mechanism allocates responsibility for overseeing data processing activities in multiple EU Member States to the data protection authority of the EU Member State where the data controller or processor has its main establishment. At the Council meeting, a majority of the EU Member States indicated that the responsible data protection authority should have exclusive decision powers with regard to enforcement actions, but acknowledged that the “local” DPAs should be involved in the decisionmaking process as well. The Council emphasized the need for further exploration of the European Data Protection Board’s role in ensuring consistent application of EU data protection rules.

On September 6, 2013, Vice-President of the European Commission and Commissioner for Justice, Fundamental Rights and Citizenship Viviane Reding traveled to Berlin where she commented on the status of the negotiations on the proposed EU General Data Protection Regulation (the “Proposed Regulation”). Commissioner Reding indicated that she was looking for Germany to become involved in the discussions about the Proposed Regulation at the highest level, and she argued in favor of stricter regulations given recent revelations about surveillance programs such as PRISM. Because the vote on the Proposed Regulation only requires a majority to pass, she also emphasized that it would not be necessary to obtain the agreement of all of the EU Member States (for example, the UK or Ireland).

On September 5, 2013, the 16 German state data protection authorities and the Federal Commissioner for Data Protection and Freedom of Information (the “DPAs”) passed a resolution concerning recent revelations about the PRISM, Tempora and XKeyscore surveillance programs.

This week a new breach notification regulation takes effect across the EU. The Regulation on the measures applicable to the notification of personal data breaches under Directive 2002/58/EC (the “Regulation”) specifies the technical measures of how Internet service providers, telecommunications providers and other public electronic communications service (“ECS”) providers must notify of data breaches.

On July 4, 2013, the European Parliament adopted new EU legislation to fight cyber crime. The Directive on attacks against information systems (the “Directive”) (see the Committee on Civil Liberties, Justice and Home Affairs’ report tabled for plenary), together with the launch of the European Cybercrime Centre and the adoption of the EU cybersecurity strategy, will strengthen the EU’s overall response to cyber crime and contribute to improving cybersecurity for all EU citizens.

On July 1, 2013, the Republic of Croatia joined the European Union, increasing the number of EU Member States to 28. As of the day of its accession, Croatia must implement the acquis communautaire (the complete body of the EU legislation), which includes the EU Data Protection Directive 95/46/EC (“Data Protection Directive”).

On June 24, 2013, the European Commission announced new technical implementing measures that address the EU data breach notification requirement for telecom operators and internet service providers (“ISPs”). Based on a Commission Regulation, these companies must:

• notify the competent national authority of the incident (or at least provide an initial description thereof) within 24 hours after detection of the breach;
• outline which data are affected and what measures have been or will be taken by the company;
• pay attention to the type of data compromised when assessing whether to notify subscribers (i.e. evaluating whether the breach is likely to have an adverse effect on personal data or privacy); and
• use a standardized format for notifying the competent national authority (e.g. an online form which is the same for all EU Member States).

As we previously reported, on May 31, 2013, the Irish Presidency of the Council of the European Union’s Justice and Home Affairs released a draft compromise text in response to the European Commission’s proposed General Data Protection Regulation (the “Proposed Regulation”). This compromise text narrows the scope of the Proposed Regulation and seeks to move from a detailed, prescriptive approach toward a risk-based framework.

On June 6, 2013, the European Union’s Justice and Home Affairs Council held legislative deliberations regarding key issues concerning the European Commission’s proposed General Data Protection Regulation (the “Proposed Regulation”). The discussions were based on the Irish Presidency’s draft compromise text on Chapters I to IV of the Proposed Regulation, containing the fundamentals of the proposal and reflecting the Presidency’s view of the state of play of negotiations. At the Council meeting, the Presidency was seeking general support for the conclusions drawn in their draft compromise text on the key issues in Chapters I to IV.

On June 5, 2013, Hunton & Williams hosted a seminar in the firm’s London office: Tracking the Draft EU Regulation ̶ General Update and the Concept of the “One-Stop Shop.” Bridget Treacy, Rosemary Jay and Tim Hickman of Hunton & Williams gave a presentation on the operation and effects of the “consistency mechanism” to be introduced in the proposed General Data Protection Regulation. The June 5 update was the most recent in Hunton & Williams’ ongoing series of Executive Briefings on the Proposed Regulation. The consistency mechanism is intended to ensure that, once the ...

On May 30, 2013, the European Court of Justice held that Sweden failed to fulfill its obligations under EU law when it delayed complying with the Court’s 2010 ruling regarding the country’s implementation of the EU Data Retention Directive 2006/24/EC (the “Data Retention Directive”). The Court ordered Sweden to pay a lump sum of €3,000,000.

On May 31, 2013, the Council of the European Union’s Justice and Home Affairs released a draft compromise text in response to the European Commission’s proposed General Data Protection Regulation (the “Proposed Regulation”). This compromise text narrows the scope of the Proposed Regulation and seeks to move from a detailed, prescriptive approach toward a risk-based framework.

On May 13, 2013, the Article 29 Working Party (the “Working Party”) adopted an Advice Paper on profiling (the “Advice Paper”). The Advice Paper serves as the national data protection authorities’ contribution to the ongoing legislative debate before the European Parliament and the Council of the European Union on the proposed EU General Data Protection Regulation (the “Proposed Regulation”).

On May 6, 2013, the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (“LIBE”) discussed the progress of the proposed General Data Protection Regulation (”Proposed Regulation”). LIBE’s lead rapporteur, Jan Philipp Albrecht, noted that, in light of the significant number of amendments tabled, more time is needed for the other rapporteurs to deliberate. As a result, the vote originally scheduled for May 29, 2013 on the lead rapporteur’s report regarding amendments to the Proposed Regulation has been postponed.

On April 22, 2013, the higher administrative court of Schleswig issued two decisions rejecting an appeal by the data protection authority of Schleswig-Holstein (“Schleswig DPA”) that sought to challenge a lower court’s earlier rulings in Facebook’s favor.

On March 1, 2013, the Irish Presidency published a note to the European Council of Ministers regarding its progress on the European Commission’s proposed General Data Protection Regulation (“Proposed Regulation”). The Note details the Irish Presidency’s work to bring a more risk-based approach to the Proposed Regulation.

On March 20, 2013, the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (“LIBE”) held legislative deliberations regarding the European Commission’s proposed General Data Protection Regulation (”Proposed Regulation”). The LIBE Committee Chair, Juan Fernando López Aguilar, noted that 2,783 amendments to the Proposed Regulation and 504 amendments to the proposed Police and Criminal Justice Directive (“Proposed Directive”) have been tabled.

On March 8, 2013, the European Union’s Justice and Home Affairs Council held legislative deliberations regarding the European Commission’s proposed General Data Protection Regulation (the “Proposed Regulation”).

On March 5, 2013, the French Data Protection Authority (the “CNIL”) announced that the French High Council for Statutory Auditors (“H3C”) and the U.S. Public Company Accounting Oversight Board (“PCAOB”) signed a Statement of Protocol (the “Protocol”) on January 31, 2013, to govern the exchange of information, including personal data, between them.

On March 6, 2013, the French Data Protection Authority (the “CNIL”) announced that it launched a consultation of relevant private and public actors for the purpose of determining whether the CNIL should adopt an initiative on “Open Data.”

On February 27, 2013, the Article 29 Working Party (the “Working Party”) issued a statement on the European Commission’s proposed revised data protection framework (“Statement”), including the proposed General Data Protection Regulation (“Proposed Regulation”). The Working Party offered amendments to the Proposed Regulation in the form of two Annexes to the Statement on the topics of competence and lead data protection authority (“DPA”) and the exemption for household or personal activities.

On February 7, 2013, the European Commission, together with the High Representative of the Union for Foreign Affairs and Security Policy, launched their cybersecurity strategy for the European Union (“Strategy”). As part of this Strategy, the European Commission also proposed a draft directive on measures to ensure a common level of network and information security (“NIS”) across the EU (the “Directive”).

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 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:

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 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 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 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 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 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.

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.

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 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.

On March 23, 2012, the Article 29 Working Party (the “Working Party”) adopted an Opinion on the European Commission’s data protection law reform proposals, including the draft Regulation that is of particular importance for businesses. The Working Party’s Opinion serves as the national data protection authorities’ contribution to the legislative process before the European Parliament and the European Council.

On March 22, 2012, the 83rd Conference of the German Data Protection Commissioners came to an end in Potsdam. The attendees indicated their general support for the European Commission’s proposed reform package aimed at modernizing and harmonizing data protection laws in the EU, but insist that Member States should have the authority to implement more stringent data protection measures for the area of public administration.

On January 25, 2012, the Article 29 Working Party (the “Working Party”) issued a Working Document providing guidance on data protection issues relating to the European Patients Smart Open Services (“epSOS”) project. epSOS is a pilot project focused on developing an information and communications technology infrastructure that enables access to patient health information (i.e., Patient Summaries) among different EU Member States for the purpose of providing medical treatment. The project also aims to facilitate the cross-border use of electronic prescriptions (i.e., ePrescriptions). epSOS involves the collaboration of a significant number of health care provider organizations and companies that contribute their knowledge and expertise to the project.

As reported in BNA’s Privacy Law Watch, EU Member States are working on an overarching privacy framework agreement with the United States. The framework agreement, which may be used as a starting point for future negotiations, aims to reduce the amount of time and resources required to prepare new agreements between the European Union and the United States.

On November 30, 2011, the French Court of Cassation upheld a decision that excluded the application of the French Data Protection Act (Loi relative à l’informatique, aux fichiers et aux libertés) to an investigation conducted by the French Competition Authority (Autorité de la Concurrence) on the grounds that the search and seizure was authorized by an “freedoms and custody judge” (juge des libertés et de la détention).

On November 17, 2011, the German Association for Data Protection and Data Security (“GDD”) held its 35th Privacy Conference (“DAFTA”) in Cologne, Germany. At the opening plenary session, Paul Nemitz, Director for Fundamental Rights and Citizenship of the European Commission, announced that the European Commission plans to implement a Regulation that is directly applicable to all EU Member States, to harmonize data protection laws in Europe.

On November 16, 2011, the French Data Protection Authority (the “CNIL”) published its Annual Activity Report for 2010 (the “Report”) highlighting its main 2010 accomplishments and outlining some of its priorities for the upcoming year. This year’s Report covers events that occurred since last year’s publication of the Annual Activity Report for 2009.

On November 3, 2011, the Labor Chamber of the French Court of Cassation (the “Court”) upheld a decision against a company that unlawfully used a geolocation device to track the company car of one of its salesmen. Although the company notified the salesman that a geolocation device would be used to optimize productivity by analyzing the time he spent on business trips, the device was in fact used to monitor his working hours, which ultimately led to a pay cut.

On October 17, 2011, the French Data Protection Authority (the “CNIL”) launched a public consultation on cloud computing (the “Consultation”). The Consultation seeks to gather opinions from stakeholders (clients, providers, consultants) regarding cloud computing services for businesses, to identify legal and technical solutions that address data protection concerns while taking into account the economic interests involved.

On October 10, 2011, the French Data Protection Authority (the “CNIL”) released a video of newly-elected Chairwoman Isabelle Falque-Pierrotin presenting her priorities and vision for the future of the CNIL. Ms. Falque-Pierrotin was elected as the new Chair of the CNIL on September 21, 2011.

On September 23, 2011, the Labor Chamber of the Court of Appeals of Caen (the “Court”) upheld a decision to suspend a whistleblower program implemented by a U.S. company’s French affiliate, despite the fact that the French Data Protection Authority (the “CNIL”) had inspected and approved the program prior to implementation. This decision follows recent amendments to the legal framework for whistleblower programs in France.

On September 22, 2011, new provisions under the French Data Protection Authority’s (“CNIL’s”) internal regulation (Délibération n°2011-249 du 8 septembre 2011) came into force. The CNIL recently amended its regulations to incorporate a new chapter (Chapter IV bis) that sets forth a specific procedure for issuing privacy seals in accordance with the French Data Protection Act. The Act authorizes the CNIL to “issue a quality label to products or procedures intended to protect individuals with respect to processing of personal data, once [the CNIL] has recognized them as in compliance with the provisions of the Act.”

On September 21, 2011, the board of the French Data Protection Authority (the “CNIL”) elected Isabelle Falque-Pierrotin as its new Chair, following Alex Türk’s resignation which he officially tendered at the board meeting.

Speaking at the British Bankers’ Association’s Data Protection and Privacy Conference in London on June 20, 2011, Viviane Reding, Vice President of the European Commission and Commissioner for Justice, Fundamental Rights and Citizenship, signaled her intention to streamline data protection to “simplify the regulatory environment” and “substantially reduce the administrative burden” for businesses.  In return, Reding expects businesses to ensure “safe and transparent digital products and services.”

On May 16, 2011, the Article 29 Working Party (the “Working Party”) adopted an Opinion on geolocation services on smart mobile devices (the “Opinion”).  The Opinion clarifies the legal framework and obligations applicable to geolocation services such as maps and navigation tools, geo-personalized services, geotagging of content on the Internet, child control and location-based advertising.

Austrian DPA Gives Green Light Subject to Conditions

On April 21, 2011, the Austrian Data Protection Commission (“Austrian DPA”) published its decision allowing Google to register its Google Street View application on the Austrian DPA’s data processing register.  As part of the registration procedure, Google agreed to blur images of faces and license plates prior to publishing them on the Internet, and to provide information to the public about the right to object to publication of certain images.  Further, the Austrian DPA required Google to:

On April 18, 2011, the European Commission (the “Commission”) adopted an Evaluation Report on the EU Data Retention Directive 2006/24/EC (the “Data Retention Directive”).

The Data Retention Directive requires that, for law enforcement purposes, telecommunications service and network providers (“Operators”) must retain certain categories of telecommunications data (excluding the content of the communication) for not less than six months and not more than two years.  To date, most of the EU Member States have implemented the Data Retention Directive, but Czech Republic, Germany and Romania no longer have implementing laws in place because their constitutional courts have annulled the implementing laws as unconstitutional.

On April 5, 2011, the Article 29 Working Party (the “Working Party”) adopted an Opinion on the current EU personal data breach framework and recommendations for future policy developments (the “Opinion”).

In 2009, the revised e-Privacy Directive 2002/58/EC (the “e-Privacy Directive”) introduced a mandatory data breach notification regime for the telecommunications sector.  Pursuant to the e-Privacy Directive, telecommunications and internet service providers are required to report certain data breaches to their national regulator and to affected individuals.

On March 16, 2011, a meeting of the “European Privacy Platform” group of the European Parliament was held in Brussels.  The meeting provided important insights into the likely structure and content of proposed revisions to the European Data Protection Directive 95/46/EC that the European Commission has been working on for the past several months.

The Council of the European Union (the “Council”) released its conclusions following meetings held on February 24 and 25, 2011, regarding the European Commission’s November 4, 2010 Communication proposing “a comprehensive approach on personal data protection in the European Union” which we reported on last November.

On February 18, 2011, the European Network and Information Security Agency (“ENISA”), an advisory body created to enhance information security in the EU, announced the issuance of its report on cookies, entitled “Bittersweet cookies.  Some security and privacy considerations.”

On January 14, 2011, the European Network and Information Security Agency (“ENISA”), which was created to enhance information security within the European Union, published a report entitled “Data breach notifications in the EU” (the “Report”).

Currently, there is wide debate throughout the EU regarding data breach notification requirements.  The debate stems from recent high-profile data breach incidents and the introduction of mandatory data breach notification requirements for telecommunication service providers imposed by EU Directive 2009/136/EC (amending EU Directive 2002/58/EC, the “e-Privacy Directive”), which must be integrated into EU Member States’ national laws by May 25, 2011.  The goal of the Report is to assist Member States, regulatory authorities and private organizations with their implementation of data breach notification policies.

Earlier this month, the Belgian Privacy Commission (the “Belgian DPA”) published its December 15, 2010 Recommendation on Mobile Mapping (Recommandation d’initiative en matière de Mobile Mapping, or “the Recommendation”).  The Recommendation defines Mobile Mapping as “technology by which a vehicle equipped with a camera and/or a scanner can digitally record all data on a specific road, including by taking 360° photos.”  The scope of the Recommendation covers not only applications such as Google Street View, but also other types of Mobile Mapping such as mapping by public authorities, mapping for tourism, real estate applications and GPS navigation mapping.

Early this week, the Article 29 Working Party issued its December 16, 2010 Opinion on applicable law, providing guidance on the scope of EU data protection law and the practical implications of Article 4 of the EU Data Protection Directive (95/46/EC, the “Directive”).

The purpose of the Working Party’s Opinion 8/2010 (the “Opinion”) is twofold.  First, it intends to clarify the current scope of EU data protection law with regard to the processing of personal data within and outside the European Economic Area (the “EEA”).  The clarifications by the Working Party are aimed at enhancing legal certainty for data controllers, providing a clearer framework for individuals and stakeholders and avoiding legal loopholes and potential conflicts between overlapping national data protection laws.  Throughout the Opinion, practical examples are used to demonstrate the clarifications, such as in the context of centralized HR databases, geolocation services, cloud computing and online social networks.  Furthermore, in light of the general revision of the EU data protection framework, the Opinion includes suggestions to improve the existing applicable law provisions in the EU Data Protection Directive.

On November 4, 2010, the European Commission (the “Commission”) released a draft version of its Communication proposing “a comprehensive approach on personal data protection in the European Union” (the “Communication”) with a view to modernizing the EU legal system for the protection of personal data.  The Communication is the result of the Commission’s review of the current legal framework (i.e., Directive 95/46/EC), which started with a high-level conference in Brussels in May 2009, followed by a public consultation and additional targeted stakeholders’ consultations throughout 2010.  Although the Commission considers the core principles of the Directive to still be valid, the Communication equally acknowledges that the existing legal framework for data protection in the European Union is no longer able to meet the challenges of rapid technological developments and globalization.

On October 29, 2009, the European Commission (the “Commission”) proceeded to the second phase of infringement proceedings against the UK relating to the UK’s implementation of EU e-privacy and personal data protection laws.  EU Member States must ensure the confidentiality of communications by prohibiting interception and surveillance without user's consent.  The Commission maintains that the UK has failed to fully implement these requirements into its national laws and has identified three specific flaws in the existing UK laws governing the confidentiality of electronic communications:

• The UK does not have an independent national authority responsible for (i) supervising the interception of communications and (ii) complaints about unlawful interception of electronic communications, despite the requirement to this effect contained within EU laws and imposed on Member States;

On October 6, 2009, the Federal Trade Commission (“FTC”) announced proposed settlement agreements with six companies over charges that they falsely claimed membership in the U.S. Department of Commerce Safe Harbor program.  In six separate complaints, the FTC alleged that ExpatEdge Partners LLC, Onyx Graphics, Inc., Directors Desk LLC, Collectify LLC, and Progressive Gaitways LLC deceived consumers by representing that they maintained current certifications to the Safe Harbor program when such certifications had previously lapsed.  The terms of the proposed settlement agreements prohibit the companies from misrepresenting their membership in any privacy, security or other compliance program.  The six enforcement actions are significant as they mark a considerable uptick in the FTC’s enforcement related to the Safe Harbor program. The FTC recently brought its first enforcement action relevant to the program, which is detailed in our post titled FTC's First Safe Harbor Enforcement Action.

On May 12, 2009, the European Commission issued a long-awaited recommendation on the implementation of privacy and data protection principles in applications supported by radio-frequency identification (“RFID”).  The recommendation follows a process initiated in 2006 when the European Commission launched a public consultation on RFID technologies.  Following this public consultation and in order to protect consumers’ privacy and data protection, the European Commission decided to take further steps by preparing a recommendation to regulate the use of RFID.