To date, the main legacy of the Brexit referendum of 2016 appears to be a country split in half: some badly wish the UK would continue to be a member of the EU and some are equally keen on making a move. Yet, there seems to be at least one thing on which Remainers and Leavers will agree: nobody knows exactly what is going to happen. The same is true of the effect of Brexit on UK data protection. However, as Brexit day approaches, it is becoming imperative for those with responsibility for data protection compliance to make some crucial strategic decisions. To help with that process, here are some pointers about what we know and what we don’t know.
Earlier this week, Bret Cohen and Sian Rudgard from the Hogan Lovells Privacy & Cybersecurity practice were interviewed as follows by Varonis’ The Inside Out Security Blog about data security requirements in the EU General Data Protection Regulation.
Part 9 of Future-Proofing Privacy: Future-Proofing Privacy: International Data Transfers 2.0. The Data Protection Directive and the Regulation both impose restrictions on the transfer of personal data by EU based businesses (whether those businesses are data controllers or data processors) to destinations outside the EEA. These restrictions, however, have not been uniformly implemented by EU Member States. In some Member States additional requirements apply, such as prior notification to or approval by the local DPA, particularly where companies wish to rely on EU Model Clauses or BCRs. This approach is essentially set to continue
with some variations.
The EU’s Article 29 Working Party issued a statement today on the recent Schrems decision invalidating the adequacy of the EU-U.S. Safe Harbor framework, emphasizing that affected businesses should start to put in place legal and technical solutions in a timely manner to meet EU data protection standards. The statement gave a January 2016 deadline for companies to come into compliance with the ruling, at which point EU data protection authorities would be “committed to take all necessary and appropriate actions, which may include coordinated enforcement actions.” In response, we publish here a high-level analysis of the possible options available for companies—including the EU Standard Contractual Clauses, Intra-Group Agreements and other ad-hoc contracts, Binding Corporate Rules, Safe Harbor 2.0, and consent—and the pros and cons of choosing each one.
On 24 March, the French data protection authority, the CNIL, announced that it will soon make easier the practical implementation of intra-group transfers of data from French entities to entities located outside the European Union where groups of companies have adopted Binding Corporate Rules (BCRs). BCRs are becoming increasingly popular among multinationals as a legal means for providing adequate protection to personal data which are transferred from the European Union to countries that are not considered to provide an adequate level of protection by the European Commission. In the CNIL’s view, the implementation of BCRs shows a strong commitment from multinational organisations to protect personal data. Indeed, the CNIL has been a champion of the emerging “BCR for processors” initiative which is also prompting interest from sophisticated processors who operate globally.
On 7 November 2014 the Polish Parliament passed the Act on the Facilitation of Business Activity which substantially amends the existing Act on Personal Data Protection. As we previously reported, this new Act requires an administrator for information security to be given an independent position within the data controller’s organization. Additionally, the new Act introduces provisions facilitating the transfer of personal data to countries outside the European Economic Area (further implementing provisions from Directive 95/46/EC and the proposed draft General Data Protection Regulation). The new law will come into force on 1 January 2015.
On April 19, the European Union’s Article 29 Working Party adopted Explanatory Document WP204 on processor Binding Corporate Rules (BCRs). Processor BCRs provide a new avenue for data controllers to transfer EU personal data to processors (such as cloud service providers) located in third countries not considered to ensure an adequate level of protection under the 1995 EU Data Protection Directive. The Article 29 Working Party, noting the success of controller BCRs and citing the “growing interest of industry in such a tool,” provided initial guidance on processor BCRs in June 2012 through Working Document WP195 (which we previously covered here). WP195 presented a “toolbox” that laid out the criteria for approval of processor BCRs, as well as explanatory notes on the content expected in the processor BCRs. As of January 1, 2013, the EU began accepting applications for approval of processor BCRs.
The Article 29 Working Party on 6 June 2012 adopted Working Paper WP 195 as a new “toolbox” with recommendations for Binding Corporate Rules (BCRs) for data processors.
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.”
Are BCRs the key to global interoperability? Some think so at the IAPP London conference. This post discusses opinions from conference presenters — will BCRs will become more and more popular as corporations implement new accountability measures, or will they fade under the weight of continued bureaucracy?
CNIL official comments on BCRs, accountability principle, and applicable law at AmCham event in Paris; provides timetable for EU privacy law reform, as described in this blog entry.