On Tuesday November 3, the Spanish data protection authority, Agencia Española de Protección de Datos, sent a letter all companies operating in Spain that had previously notified the AEPD of cross-border data transfers to Safe Harbor certified companies. The letter warns companies that because Safe Harbor certifications are no longer recognized as valid, they must take steps to ensure that alternative mechanisms are implemented in order to continue transferring data to Safe Harbor certified companies in the United States. In particular, the AEPD is requiring of all companies that received the letter to inform it not later than January 29, 2016 of any mechanisms that have been implemented to ensure adequate protections for personal data transferred to importers in the United States.
National EU member state courts, as well as the European Court of Justice, have struggled for several years to define the scope of application of EU data protection law in individual member states. In a decision that provides important guidelines on the competence of, and co-operation between, national data protection authorities, the ECJ has clarified how data protection law applies in cross-border situations within the EU.
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.
Thank you to everyone who participated in today’s webinar “Safe Harbor Invalidated – What Next?”, in which we analyzed the implications of yesterday’s decision by the Court of Justice of the European Union invalidating the EU-U.S. Safe Harbor Framework. A copy of the slide deck and a link to a recording of the webinar are attached to this post.
On 6 October 2015, the Court of Justice of the European Union declared the EU-US Safe Harbor framework invalid as a mechanism to legitimize transfers of personal data from the EU to the US. This decision effectively leaves any organisation that relied on Safe Harbor exposed to claims that such data transfers are unlawful. In this post, we outline the effects of the decision and a suggested plan of action, and include details for a webinar we will be hosting on Wednesday, 7 October to discuss the next steps that organisations should take.
Next Tuesday, the Court of Justice of the European Union is scheduled to publish its decision in Maximillian Schrems v. Data Protection Commissioner, in which it is expected to rule on the validity of the U.S.-EU Safe Harbor Framework. Last week’s opinion of the CJEU’s Advocate General emphatically found Safe Harbor to be inadequate under EU law on the basis that access to Safe Harbor data by U.S. intelligence services is too wide and disproportionate, and that Safe Harbor does not contain appropriate guarantees to prevent this level of access. While the AG’s opinion is not binding on the CJEU, the short turn-around implies that the CJEU will not vary significantly from the opinion.
The Opinion of the Advocate General of the Court of Justice of the European Union on the case assessing the status and validity of Safe Harbor has created significant uncertainty relating to its immediate future. While the CJEU has not yet ruled, the AG’s decisions are typically quite influential. The AG’s view is that the Safe Harbor program does not provide an adequate level of data protection and that it should have already been invalidated by the European Commission.
When the General Data Protection Regulation becomes law, it will apply immediately throughout the EU due to its direct effect. It is absolutely crucial for organisations to know if they are or are not subject to the Regulation. Since the Regulation strengthens data protection principles, requires organisations to demonstrate compliance and ushers in greater enforcement powers for regulators, it is essential for all organisations, public and private, local, national or global, to understand in what circumstances the Regulation will apply to their use of personal data. This entry is an excerpt from Hogan Lovells’ “Future-proofing privacy: A guide to preparing for the EU Data Protection Regulation.”
It’s been said before but the CJEU’s decision on the Google Spain v. AEPD case was a real game changer. Every law student on the planet learns that there are a number of sources that contribute to the legal system of a given jurisdiction. First and foremost are the statutes adopted by – in the best of cases – democratically elected parliaments. Then there are a myriad of legal obligations that arise from various sources ranging from regulatory guidance to market practices. Ultimately, the most authoritative source is the case law that is constantly emerging from courts’ decisions. Data protection law is no exception and the CJEU has emerged as the ultimate interpreter of the legislator’s will.
The fact that the Safe Harbor framework is permanently in the firing line is not particularly earth-shattering, but the prospect of the top European court declaring its inadequacy later this year could have dramatic consequences. This prospect became all the more possible after a hearing at the Court of Justice of the European Union (CJEU) in Luxembourg in March. In an article published in the May 2015 issue of Privacy Laws & Business International Report, Eduardo Ustaran, Partner in Hogan Lovells’ Global Privacy and Information Management Practice, explores the policy climate that led to the CJEU’s potential reckoning of the Safe Harbor and the potential consequences of the eventual ruling.
Public atrocities always attract some kind of political reaction. Generally, the more brutal the atrocity, the harsher the reaction. It is understandable from the perspective of political responsibility. So when defenceless people are mercilessly attacked by gunmen as punishment for their satirical views, a very visible reaction is to be expected. However, political reactions to grave situations need not only visibility but measured thinking and careful decision-making. The reaction to a violent and criminal act can often have more far-reaching implications than the act itself, leading to an escalation of violence. At the same time, doing nothing to protect citizens from harm is not a responsible option. As with many political decisions, securing public safety is a balancing exercise of robustness and restraint.
You know a matter is serious when a top international tribunal takes upon itself to change the course of society. This year, three rulings of the Court of Justice of the European Union, the highest judicial authority of the EU, show its grave concern for the data-hungry world in which we live and its desire to change it. Each of these rulings targets a different audience – the state, the corporate world and the citizen – but all of them uphold the role of privacy as a right that is threatened by our tech-driven existence. The effects of these decisions go beyond the pure legal technicalities of interpreting European data protection law because their consistent message is that society as a whole, in the EU and elsewhere, should be less tolerant of and more concerned about our dependence on data.
The Court of Justice of the European Union has today published its decision in the case of Ryneš and has found that domestic CCTV which films a public area cannot be exempt from the obligations contained in the EU Data Protection Directive by virtue of the “household exemption”.
The “Right to be Forgotten” ruling issued by the European Court of Justice in May 2014 has been a key source of controversy this summer. Much criticism has explored the impact of the ruling on freedom of expression and the right of access to information. In an article published in the Privacy and Data Protection Journal, Eduardo Ustaran, Partner in Hogan Lovells’ Global Privacy and Information Management Practice, unpacks the wider implications of the ruling to focus on key legal-applicability considerations for businesses with subsidiaries in the EU. The article also considers how the ruling will impact legislative debate on the forthcoming EU Data Protection Regulation.
The dust has yet to settle but much has already been said about the implications of the Google Spain decision by the Court of Justice of the European Union and the right to be forgotten. The controversy has focused on the impact of this judgment on freedom of expression and the right of access to information, as well as the potentially devastating effect of a large amount of deletion requests. EU regulators are wondering – like everybody else – how big and unmanageable this is going to get, whilst search engines scramble for resources to deal with the unknown. With the prospect of an even more demanding EU privacy framework looming over the horizon, the right to be forgotten decision is a potential game changer for the whole Internet industry. But the CJEU did not just enable an unprecedented level of control by individuals over their data, it shook the basis on which the applicability of EU data protection law has been understood until now.