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HL Chronicle of Data Protection Privacy & Information Security News & Trends

Category Archives: International/EU Privacy

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Posted in Health Privacy/HIPAA, International/EU Privacy

Focus on Google DeepMind under the GDPR’s Lens

The Information Commissioner’s Officer ruled, on 3 July 2017, that the Royal Free NHS Foundation Trust had failed to comply with the Data Protection Act 1998 when it provided 1.6 million patient details to Google DeepMind as part of a trial diagnosis and detection system for acute kidney injury, and required the Trust to sign an undertaking. The investigation brings together some of the most potent and controversial issues in data privacy today; sensitive health information and its use by the public sector to develop solutions combined with innovative technology driven by a sophisticated global digital company. This analysis provides insight on the investigation into Google DeepMind with focus on how the General Data Protection Regulation may impact the use of patient data going forward.

Posted in Employment Privacy, International/EU Privacy

European Court Proposes Criteria for Assessing Employee Monitoring Activities

On September 5, the European Court of Human Rights issued a ruling in the case of Bărbulescu v. Romania that affirms employees’ right to privacy in the use of communications tools in the workplace. Although the ruling is strict, it aligns with the positions taken by the national courts of certain European Union Member States (e.g., Germany) and guidance issued by data protection authorities. And the criteria that the ECHR adopts for assessing the lawfulness of monitoring generally aligns with the requirements under the General Data Protection Regulation, which takes full effect on May 25, 2018. In our post, we summarize the ruling and identify key takeaways for companies that monitor workforce use of information systems and tools in the EU.

Posted in International/EU Privacy

E-mail Marketing at Your Peril

You may not have noticed it, but despite all of the distractions caused by Brexit and the General Data Protection Regulation (Regulation (EU) 2016/679), the UK Information Commissioner’s Office has been extremely active on the enforcement front in recent times. One of the features of this activity has been the variety of infringements targeted and, in particular, the focus on e-mail marketing. More specifically, the ICO has taken enforcement action by way of monetary penalties against well-known consumer brands such as Flybe, Honda, Morrisons and Moneysupermarket, for practices that might not have been seen as so out of order in the past. However, given the current tough stance taken by the ICO in connection with direct marketing practices, it would not be surprising to see future enforcement actions in this area.

Posted in International/EU Privacy, News & Events

Germany Publishes English Version of its National GDPR Implementation Act

The German Ministry of Interior affairs has published an English translation of the new Federal Data Protection Act (Bundesdatenschutzgesetz – BDSG). On 27 April 2017 the German Parliament passed the BDSG in order to make use of the opening clause provided for in the EU General Data Protection Regulation (GDPR). This bill has been controversial; see here for an interview with Jan Albrecht, Stefan Brink and Tim Wybitul.

The new BDSG replaces its national predecessor, which has been in force for the last 40 years. The new BDSG is the first step toward adapting national German member State law to the provisions of the GDPR. With an effective date of 25 May 2018, the new BDSG will also form the basis for the adaption of further German data privacy acts to the GDPR. We note that several ministries have already indicated that they are preparing specific data privacy provisions concerning special processing situations like social security data protection, and we expect these provisions to follow the implementation of the BDSG.

This overview summarizes the major implications of the BDSG for companies operating in Germany.

Posted in Employment Privacy, International/EU Privacy

New Case Law on Restrictions for Employee Monitoring in the Workplace in Germany

According to the German Federal Labor Court, Germany’s highest court for employment disputes, German employers are not allowed to monitor employees in the workplace without a concrete suspicion of a criminal violation or, in some cases, a serious breach of duty. This means that employer monitoring of an employee’s computer usage without a concrete suspicion, including the use of keylogging software that records all keyboard entries made at a desktop computer does not comply with German data privacy laws. Courts may exclude evidence obtained under violation of German data privacy laws from their proceedings.

Posted in International/EU Privacy

Russian Data Protection Authority Publishes Privacy Policy Guidance

On 31 July, the Russian data protection authority, Roskomnadzor, issued guidance for data operators on the drafting of privacy policies to comply with Russian data protection law. Russia’s 2006 privacy law – Federal Law No. 152-FZ of 27 July 2006 “On Personal Data” – requires, among other things, that Russian data operators must adopt a privacy policy that describes how they process personal data. This notice requirement is similar to the approach in Europe. Furthermore, data operators shall publish such a policy online when personal data is collected online or otherwise provide unrestricted access to the policy when personal data is collected offline. The guidance – although non-binding and recommendatory in nature – emphasizes the regulator’s compliance expectations and should therefore be taken into account by organizations acting as data operators in Russia.

Posted in International/EU Privacy

UK Government Releases Statement of Intent on Proposed Data Protection Bill

On 7 August 2017, the UK Department for Culture, Media and Sport published its Statement of Intent on a proposed Data Protection Bill, which will replace the current UK Data Protection Act 1998. The Bill is designed to fully implement the two new laws emanating from the EU – the General Data Protection Regulation and the Data Protection Law Enforcement Directive – in an effort to make the UK’s transition out of the EU as smooth as possible from a data protection perspective and to ensure that both commercial and law enforcement data flows ‘remain uninterrupted after the UK’s exit from the EU’.

Posted in International/EU Privacy

South Korea Joins APEC Cross-Border Privacy Rules System

On Monday, June 12, South Korea became the latest country approved to officially join the Asia-Pacific Economic Cooperation’s Cross-Border Privacy Rules system. It is the fifth APEC economy to participate in the system, joining the United States, Canada, Japan, and Mexico. To date, twenty companies—including Apple, Cisco, HP, IBM, Rackspace, and Workday—have been certified under CBPR.

Posted in International/EU Privacy

UK to Align Itself with the GDPR Despite Brexit

“A new law will ensure that the United Kingdom retains its world-class regime protecting personal data”. This is today’s strong statement by Her Majesty The Queen reflecting the level of priority given by the UK government to privacy and data protection. Aside from the political controversies surrounding the recent general Election and the prospect of Brexit, the Queen has confirmed that during this Parliament the government intends to pass a new Data Protection Act replacing the existing one.

Posted in International/EU Privacy

EU ePrivacy Regulation Proposal Falls Short of Parliament’s Expectations

The European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs commissioned a study to assess the European Commission’s draft e-Privacy Regulation, which was published in January 2017. The e-Privacy Regulation aims to harmonise privacy rules across the EU in the area of electronic communications, but the study has found that the draft e-Privacy Regulation does not as far as the GDPR in some respects. This contrasts with many other views expressed publicly, which regarded the Commission’s draft as a tightening of the GDPR regime. A central theme of the study, which was carried out by academics of the IViR Institute for Information Law, University of Amsterdam, is the need to protect privacy of correspondence regardless of medium or any other factor. The EU legislative institutions are urged to pay extra attention to four areas in which it is felt that there is insufficient protection of the right to privacy and confidentiality of communications. We explore these issues in the following post.

Posted in International/EU Privacy

China’s Revised Draft Data Localisation Measures

On 19 May 2017, the Cyberspace Administration of China released a revised draft of its Security Assessment for Personal Information and Important Data Transmitted Outside of the People’s Republic of China Measures. The draft emerged just over a week after public comments closed on the first draft of the measures. the Second Draft Export Review Measures do, to an extent, relax some of the more stringent requirements stated in the First Draft Export Review Measures and originally due to become law on 1 June, 2017 when China’s Cyber Security Law takes effect. However, the revised draft measures as set out in the Second Draft Export Review Measures still leave a significant compliance challenge for multi-national businesses operating in China . We explore the Second Draft Export Review Measures below.

Posted in International/EU Privacy

UK Parliament Passes New Digital Economy Act

The Digital Economy Bill passed into UK law last Thursday 27 April 2017 amidst the flurry of activity known as the ‘wash up’ period before the dissolution of Parliament and ahead of the early general election in the UK to be held on 8 June. The Digital Economy Act introduces measures to “modernise the UK for enterprise,” and includes plans for public sector data sharing, direct marketing and age verification for online pornography, amongst other measures. An overview of these measures is set forth in this post.

Posted in International/EU Privacy

Article 29 Working Party Issues Guidance on Data Protection Impact Assessments

The steady trickle of GDPR guidance from the Article 29 Working Party continues. Fresh from finalising its guidance on data portability, lead supervisory authorities and data protection officers, the Working Party has published draft guidance on data protection impact assessments, the full text of which is available on the Working Party website. Comments can be submitted to the Working Party by 23 May 2017, after which the guidance will be finalised.

Posted in International/EU Privacy

State of the Cyber Nation: UK Government Report on Cybersecurity Breaches

On 19 April 2017, the UK Government’s Department for Culture, Media and Sport (DCMS) published a report on cyber security breaches and how they affected UK companies in the last year. The report indicates that a number of UK companies have not implemented comprehensive cybersecurity policies or implemented strong safeguards to protect against cyber attacks. The General Data Protection Regulation — in particular the requirement to ensure all personal data is protected by appropriate technical and organisational measures — provides a real opportunity for any organisation to build a new cyber security strategy. Documenting the decisions taken on these measures will be useful for showing compliance with the new requirements for data protection by design and by default.

Posted in International/EU Privacy

An Opportunity to Shape Compliance with GDPR

A close observer of the GDPR will have noticed that, in several places, individual EU Member States can implement derogations from the GDPR requirements. Of course, as a regulation under EU law there is less scope for local flexibility under the GDPR than under the current EU Data Protection Directive 95/46. Yet the GDPR does, in a number of key areas, allow an EU Member State to set down local laws that could allow a more locally relevant flavour to a particular aspect of compliance. The closing date for submitting views is Wednesday, 10 May 2017.

Posted in International/EU Privacy

When Did You Last See Your Filing Cabinets? UK ICO Fine for Discarded Data Shows Accountability in Action

If you care enough about privacy issues to be a regular reader of this blog, you probably know that one of the Big Changes under GDPR will be the introduction of “accountability” as a legal obligation, i.e. it will now be a requirement that a data controller is able to demonstrate its compliance with the principles relating to processing of personal data set out in Article 5 of the GDPR. You may even have started thinking about what this means for your organisation: how are you going to get your development teams to adopt privacy by design and default? What are you doing about data minimisation? Do you apply appropriate levels of encryption to your personal data? In our ever-more digitally driven world, it’s easy to get caught up in the sophisticated stuff, but a recent UK ICO decision reminds us that accountability is about the simple stuff as well. Which brings us to filing cabinets.

Posted in International/EU Privacy

UK ICO Publishes Guidance on Consent Under GDPR

The UK Information Commissioner’s Office has just published draft guidance on consent under GDPR. This is an interesting move given that the Article 29 Working Party has promised guidance on the same topic later this year, but reading the guidance makes it clear why the ICO decided to prioritise it: many of the practices which it identifies as unacceptable are fairly common in the UK, meaning many companies are going to have to re-think their approach to legitimising their data processing.