On February 28, 2018, the Belgian Privacy Commission issued a recommendation on the position it takes with regard to data protection impact assessments (or “DPIAs”) as foreseen in the GDPR. A DPIA under the GDPR is similar in scope and impact to its predecessor, the PIA (or “privacy impact assessment”) and requires businesses to assess processing operations that are likely to present a high risk to individuals’ rights. Such “high risk” is, for instance, likely to present itself in processing operations involving sensitive data, systematic monitoring, or vulnerable individuals such [...] Read more
Last week, the Federal Trade Commission granted a petition by Sears Holding Management seeking modification of a 2009 Commission Order. The notable 2009 Order settled allegations that Sears had improperly failed to provide notice regarding data collection by certain software the company offered to consumers. Sears argued that the 2009 Order placed it at a “competitive disadvantage” in the mobile application marketplace. The now-modified Order enables Sears to conduct certain “consumer-expected” forms of data collection and use without requiring heightened notice or consent under the 2009 [...] Read more
In just under 100 days, the EU General Data Protection Regulation (GDPR) enters into force. One of the major changes the GDPR introduces is a duty for in-scope controllers and processors to maintain written records of their processing activities. Under Article 30 GDPR, companies will need to inventory all “processing activities under [their] responsibility” and memorialize them in a written record setting forth, inter alia, the purposes of processing operations, international transfers, and retention periods.
Article 30 GDPR thus creates a new kind of documentation obligation. This obligation [...] Read more
In less than 100 days, the General Data Protection Regulation (GDPR) will go into effect. This means that as of May 25, 2018, each national Supervisory Authority will have the authority to apply and enforce the GDPR.
The GDPR raises the bar in terms of requirements substantially higher than the Data Protection Framework Directive. For instance, it recognizes new rights for data subjects (e.g. right to be forgotten and right to data portability), introduces data breach notification requirements, introduces the concept of a Data Protection Officer, and brings enhanced accountability obligations.
Given [...] Read more
“To Harmonize or Not To Harmonize: That Is the Question.” With the the GDPR fast approaching on May 25, 2018, European Member States are getting ready with the implementation of national legislation. Although the GDPR is a regulation, and directly applicable in all Member States, it has left room for country-specific legislation in several different regards (such as the processing of employee data or individual rights restrictions). Most Member States still only have draft legislation at this point, but the expectation (or at least intention) is that each country will have adopted legislation [...] Read more
About this time last January, the European Parliament released its proposal for a new ePrivacy Regulation. The intent of the ePrivacy Regulation is to replace the current ePrivacy regime – which consists of an ePrivacy Directive and a patchwork of local implementing legislation – with a uniform set of directly-applicable EU-wide rules. Since the Parliament released its ePrivacy Regulation draft, both the European Council and the European Parliament have reviewed it and released their own revised drafts.
The ePrivacy Regulation contains a number of important rules for companies. Traditionally, [...] Read more
On November 16, 2017 the Belgian Senate adopted an “Act on the Establishment of the Data Protection Authority” (the “Act”). Following Austria, Germany, and the UK, Belgium is the fourth EU Member State to pass a domestic statute implementing the General Data Protection Regulation 2016/679 (“GDPR”) prior to its effective date of 25 May 2018. The new Belgian Act sets forth the structure and legal organization of the Data Protection Authority (“DPA”), which will serve as the successor of the current Belgian Privacy Commission. More importantly, the Act significantly broadens the DPA’s [...] Read more
On November 30, 2017, a group of U.S. senators re-introduced a bill, known as the Data Security and Breach Notification Act, which seeks to impose criminal liability of up to five years of jail time on any corporate executive convicted of “intentionally and willfully” concealing a data breach.
The bill also proposes that the Federal Trade Commission (FTC) establish standard, nationwide security protocols for businesses to follow. The bill would also require companies to report data breaches to consumers or users within 30 days unless a U.S. federal law enforcement or intelligence agency [...] Read more
Over the past year, the German government has been working on legislation to implement the EU’s General Data Protection Regulation (GDPR). On July 6, 2017, Germany did so by passing a statute titled the Data Protection Amendments and Implementation Act. The Act repeals Germany’s venerated Federal Data Protection Act (Bundesdatenschutzgesetz, or BDSG) and replaces it with an entirely new BDSG, aptly referred to as the “BDSG-New.” Germany becomes the first EU Member State to pass a GDPR implementation statute. Given Germany’s reputation as one of, if not the, most serious privacy jurisdiction [...] Read more
In what it considered “an unusual case” (available here), the Irish High Court has referred the issue of the way data is transferred between the EU and countries outside the EU to the Court of Justice of the European Union (“CJEU”). Ms. Justice Caroline Costello will ask the CJEU for a preliminary ruling on the validity of the Standard Contractual Clauses (“SCCs”) as an adequate data transfer mechanism. Justice Costello did not comment on the laws of the EU or the US, but rather on the validity of SCCs as a data transfer measure between the EU and the US.
The case arose from a complaint [...] Read more
