Regulatory Enforcement

Council of the European Union publishes new draft ePrivacy Regulation

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The Council of the European Union published a new draft of the ePrivacy Regulation (link here) for discussion purposes on 22 March. This draft aims to facilitate discussions as we are moving towards the final version of the ePrivacy Regulation. As such, the changes outlined below are not final, but rather indicative of the direction that the ePrivacy Regulation is taking. Of particular interest to companies are the provisions relating to cookie settings, and direct marketing communications:   Cookie Settings The new draft clarifies that a one-off consent for a cookie in the context [...] Read more

Belgian Court Uses Novel Argument to Assume International Jurisdiction over Non-EU Facebook Entities

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On February 16, 2018, the Brussels Court of First Instance rendered a judgment in proceedings brought by the Belgian Privacy Commission’s against Facebook. The case forms one part of two-tiered litigation brought by the Commission in regards to alleged monitoring practices vis-à-vis Belgian internet users. In parallel to the proceedings that resulted in the judgment cited above, the Belgian Privacy Commission had also initiated a procedure referred to as “summary proceedings” against Facebook – and Facebook defeated the Privacy Commission’s claim before the Brussels Court of Appeal in [...] Read more

Data Protection Litigation to Become a New Reality in Belgium

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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

WP29 issues Guidelines on Automated Individual Decision-Making and Profiling in the GDPR

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On October 18, 2017, the Article 29 Working Party (the “WP29”) published Guidelines clarifying the new profiling and automated decision-making provisions of the General Data Protection Regulation (“GDPR”).  European Union regulatory authorities and the WP29 consider that technological developments that facilitate the creation of individual profiles, such as big data analytics, AI and machine learning, have created new risks to data protection.  As the majority of industries (insurance, marketing and finance, and even healthcare) already apply and use these new techniques today, the WP29 [...] Read more

Facebook Fined for WhatsApp Data Linking Fallout

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On 18 May 2017, the European Commission (“Commission”) fined Facebook €110 million ($122 million) for misrepresentations made in its application for competition clearance of the company’s acquisition of WhatsApp. In its merger application, Facebook claimed that it would be unable to automatically match Facebook users’ accounts and WhatsApp users’ accounts for marketing and other purposes. However, in August 2016, WhatsApp introduced functionality enabling the linking of WhatsApp users’ phone numbers with Facebook users’ identities. This is the first time since the new Merger Regulation [...] Read more

Australia Adopts New Data Breach Notification Legislation

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On February 13, 2017 Australia became one more among nation states adopting data breach notification legislation. In recent House and Senate votes, the Australian Parliament amended the Privacy Act 1988, introducing mandatory data breach notification requirements for entities regulated by the Privacy Act. Who is Subject to the New Legislation? The recent bill requires entities with revenue over $3 million AUD ($2.3 million USD) and certain credit reporting bodies and recipients of tax file number information to notify both the Australian Information Commissioner and affected individuals “as [...] Read more

WP29’s Guidance on the Lead Supervisory Authority

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Late last week, the Article 29 Working Party (“WP29”) issued detailed guidance on companies’ obligations under three key provisions of the General Data Protection Regulation (GDPR).  This is part three of a three-part Alston & Bird series evaluating WP29's positions, and relates to  the “One Stop Shop” mechanism which aims at simplifying the way companies with operations in multiple EU countries interact with the EU supervisory authorities (“SAs”). Part 1 deals with Data Protection Officer Obligations, under the GDPR, while part 2 analyzes guidance on the Right to Data Portability. The [...] Read more

FCC Proposes New Privacy Rules for Internet Service Providers

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On March 10, 2016, the Federal Communications Commission (“FCC”) proposed new privacy and data security rules for Internet service providers (“ISPs”) that, if passed, would regulate how ISPs collect, use, share, and protect customers’ data. The notice of proposed rulemaking (“NPRM”) that FCC Chairman Tom Wheeler circulated for consideration by the full Commission is previewed in a three-page fact sheet that sets forth the proposed rules, which are built on the three core principles of choice, transparency, and security. In order to “provide the tools consumers need to make smart [...] Read more

Working Paper on Internet Service Providers and Privacy Released

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On February 29, The Institute for Information Security and Privacy released a Working Paper titled, “Online Privacy and ISPs: ISP Access to Consumer Data is Limited and Often Less than Access by Others.”  Peter Swire, Senior Counsel at Alston & Bird and Professor at the Georgia Institute of Technology Scheller College of Business authored the paper, along with Alana Kirkland, an associate in Alston’s Technology and Privacy Group and Justin Hemmings, a policy analyst at Alston & Bird and a research associate at the Georgia Institute of Technology Scheller College of Business. Broadband [...] Read more

Article 29 Working Party announces its 2016 Action Plan for GDPR Preparedness

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During a press conference held on February 3, 2016, the President of the Article 29 Working Party (“Working Party”) discussed the Working Party’s 2016 action plan concerning the new General Data Protection Regulation (“GDPR”). The action plan lays out the groundwork required to prepare the DPAs for their new role under the GDPR and to ensure a smooth transition as the Working Party, established under the Data Protection Directive, is superseded by the European Data Protection Board (“EDPB”). The EDPB will be tasked mainly with ensuring a coordinated and consistent application of the [...] Read more