Undoubtedly one of the more mind-bending exemptions to apply under the Freedom of Information Act 2000 (FOIA) is the exemption for personal information (s.40) (although sections 30 and 36 are also up there!). This is partly due to s. 40’s close link with the Data Protection Act 1998 (DPA). Not one to hog the limelight, the DPA has typically been cited in past litigation as a secondary or even tertiary issue to the main action when there is a claim for breach of confidence or breach of privacy. This led to a scarcity of judicial rulings on the DPA prior to the FOIA. However, in the Tribunal and higher court decisions flowing from the FOIA, certain aspects of the DPA have frequently been examined when public authorities seek to rely on the s. 40 exemption. Consequently there have been a number of rulings on the scope of personal data and on the ‘legitimate interests’ ground as a legal basis for disclosing such information. These rulings have been based on the DPA which itself implements the EU Data Protection Directive 95/46/EC. But the Directive is due to be replaced by an EU Regulation in the next few years. What will this mean for how the s. 40 exemption under FOIA is interpreted?
In a recent client alert, Hogan Lovells partners from the firm’s London and Washington, D.C. offices highlighted key takeaways for businesses following the European Data Protection Supervisor’s Workshop on Privacy, Consumers, Competition, and Big Data. The workshop, hosted by EDPS in the European Parliament in Brussels on 2 June 2014, discussed the technological advances and market for ‘big data’ analytics and the policy implications for the fields of data protection, competition and consumer protection of the rapidly expanding digital economy in the EU and in other regions, particularly the in US. Around 70 experts attended, including representatives from the European regulators and the US Federal Trade Commission.
The EU Parliament’s Committee on Civil Liberties, Justice and Home Affairs (“LIBE”) voted on Monday to adopt its report on the draft General Data Protection Regulation and the separate Directive for the law enforcement sector. This vote sets out the Parliament’s position for its negotiations with the Council and Commission (known as the “trialogue” stage). The Committee aims to have a plenary Parliamentary vote in March before the Parliamentary elections.
On September 1, China’s Provisions on the Protection of the Personal Information of Telecommunications and Internet Users will come into force, affecting a wide range of consumer-facing websites, including corporate sites, product information sites, and social media pages. This post examines some of the requirements of the Provisions, and provides a link to a comprehensive Hogan Lovells Corporate Alert describing recent privacy-related legislative developments in China.
In an August 13 letter to Commissioner Viviane Reding, Article 29 Working Party Chair Jacob Kohnstamm requested more information regarding the United States’ national security surveillance program, including the widely-publicized PRISM program.
The European Court of Justice (ECJ) is considering a critical case regarding the “right to be forgotten” and the application of EU data protection law to Internet intermediaries. The case involves a Spanish individual who is seeking to require Google to delete references to newspaper articles mentioning his prior involvement in debt collection proceedings from its search results. The ECJ’s adviser, Advocate General Niilo Jääskinen, recently issued a non-binding opinion stating that although EU law should apply to Google, the company should not be deemed a “data controller” for its search engine activities. The opinion also warned that the “right to be forgotten” can adversely affect freedom of expression.
Although China does not have an omnibus privacy statute or framework, the Chinese government recently has released a number of new privacy guidelines and regulations. This blog posts discusses a number of those guidelines and regulations, including two draft rules: Provisions on the Protection of the Personal Information of Telecommunications, and Internet Users and the Provisions on Registration of the True Identity Information of Phone Users (“Provisions on Phone Users”).
Nicolas Colin, one of the authors of the report proposing a “privacy tax” in France that we blogged about on January 22nd, just explained his report in more detail in this Forbes blog entry. Readers interested in this issue may find the Forbes blog post of interest.
The French government released on January 18, 2013 a 200-page study prepared by Pierre Collin and Nicolas Colin proposing changes to international tax rules to take better account of value creation by digital firms. As a shorter term step, the report proposes that France create a tax that would affect all firms that create value […]
France’s data protection authority, the Commission Nationale de l’Informatique et des Libertés (CNIL), released on November 14, 2012 English-language versions of its compliance guides for businesses. The first guide, “Methodology for Privacy Risk Management”, provides a step-by-step guide for identifying risks and prioritising remedial actions. The second guide, “Measures for the Privacy Risk Treatment“, provides practical guidance on […]
Europe’s Network and Information Security Agency, ENISA, released on November 20, 2012 its report on the technical aspects of the right to be forgotten. ENISA first points out that any technical solutions for the right to be forgotten would require an unambiguous definition of the personal data that is covered by the right to be […]
Prominent European government officials provided up-to-the-minute perspectives on the proposed European data privacy regulation at this week’s IAPP Europe Data Protection Congress in Brussels. The officials’ comments — summarized below –indicate how the proposal might evolve for the next steps in the policy process, which include the issuance of the European Parliament’s formal report on […]
Duke Law School is hosting the Protected-Privacy Data Conference on November 29–30, 2012, addressing a range of privacy issues including especially U.S. litigation conflicts between discovery and foreign privacy protections, secrecy, and blocking laws. The event is part of The Duke Conference: Bench-Bar-Academy Distinguished Lawyers’ Series. Hogan Lovells partner Chris Wolf will participate on two panels […]
The European Court of Justice held on October 16, 2012 that Austria’s data protection authority is not sufficiently independent, and therefore fails to comply with the requirements of the European data protection directive. The Court found that Austria’s DPA has too many links to the Austrian Federal Chancellery and that the EU Data Protection Directive’s requirement of “complete independence” is violated.
In a recently-issued opinion, the Article 29 Working Party is pushing for a definition of personal data that would cover data that permits individuals to be “singled out and treated differently.” The Working Party also supports stringent consent conditions, and criticizes delegated acts of the Commission.
On September 22, scholars gathered at George Mason University to present research papers on the right to be forgotten, HTTPS security, accessing data in the cloud, and “option value” as applied to privacy choices. This blog entry summarizes the program and links to the insightful papers.
The French CNIL’s new guidelines on cloud computing revisit the tricky question of whether a cloud provider is a data processor or a data controller under French data protection law. The CNIL’s guidelines contain seven recommendations for cloud customers, and a list of recommended contractual clauses. The CNIL points out that when the cloud provider is located in a non-European country “local government authorities can send requests to the provider to have access to the data.”
Commissioner Reding says right to be forgotten must be balanced with other rights. European Parliament Committee says regulation should be a minimum, calling for class actions and expanded extra-territoriality.
Europe’s Article 29 Working Party writes to Hogan Lovells partner Quentin Archer to comment on the Sedona Conference International Principles on Discovery, Disclosure and Data Protection. Working party supports of initiative, citing areas for further progress.
The Council of Europe’s 2012 Octopus Cybercrime conference closed today in Strasbourg, France. Hogan Lovells partner Winston Maxwell presented the firm’s white paper on government access to data in the cloud. This blog contains links to the conference materials.
Jan Philipp Albrecht, the rapporteur to the European Parliament for the proposed EU Data Protection Regulation, has set forth a draft calendar that indicates how long debate over the Regulation may last. It is anticipated that by summer 2013 the Regulation should be ready for trilogue with the Council and Commission, and that the Regulation shall be put to a vote in the plenary session of the European Parliament in early 2014.
Chris Wolf, Hogan Lovells Privacy and Information Management Practice Director, has a column in Slate, the daily Web magazine addressing the tension between privacy laws and other societal interests, and the potential for inflexible application of privacy laws in the EU. His discussion is in the context of the prosecution of two reporters for invading the privacy of a former Nazi commando who had been in hiding for decades. A link to the column is included in this blog entry.
Hogan Lovells is proud to have six lawyers from its Privacy and Information Management group presenting at various sessions of this year’s IAPP Global Privacy Summit. For those attending the Summit, please consider attending the sessions this week to hear from members of the Hogan Lovells team about various cutting edge topics, as well as about how you can get involved in the IAPP’s public service initiative.
Hogan Lovells partners Quentin Archer, Roger Tym and Winston Maxwell hosted a London workshop on February 29, 2012 aimed at collecting comments for the UK Ministry of Justice’s public consultation on the proposed EU privacy Regulation. Workshop participants commented on the right to be forgotten, data portability, the accountability principle, data breach notifications, proposed requirements for consent, fining powers, and the “one-stop-shop” principle.