July is set to be a busy month in Luxembourg. On the first and second of the month, the General Court of the European Union (which is part of the Court of Justice of the European Union) will hear a case against the EU-U.S. Privacy Shield brought by three French NGOs, La Quadrature du Net, French Data Network and Fédération FDN. A week later, on 9 July, the CJEU will hear arguments in Schrems II, in which the Irish High Court has referred 11 questions relating to whether the European Commission’s Standard Contractual Clauses provide an adequate level of protection for personal data which is transferred to the US.
It’s no secret that a hot topic, perhaps the hot topic, in the European data protection world at present is the interplay between the GDPR and the e-Privacy Directive, in particular how it affects online advertising involving cookies. The European Data Protection Board recently released an opinion on this topic, and on 21 March the Court of Justice of the European Union released Advocate-General Szpunar’s opinion in the case of Planet49, which discusses the requirements for valid consent, in the context of both cookies under the e-Privacy Directive and more general data processing under the GDPR.
Making predictions for the year ahead is possibly as desirable as unreliable. In a world of unlimited data and advanced science, it would be tempting to think that the future is already written. Algorithms and artificial intelligence will show us what lies ahead with immaculate accuracy. Or perhaps not. At least not yet. To say that the world is in turmoil is an understatement and the same is true of the world of privacy and data protection, which makes predicting the future particularly tricky. But since the urge to plan, budget and prepare for what is likely to happen next is so real, now is a good time to pause, reflect about what’s going on, and make some predictions for 2018.
Hot on the heels of the European Commission’s official review of the functioning of the EU-U.S. Privacy Shield framework, the Article 29 Working Party of EU data protection regulators has issued its own report on the matter. The summary of findings by the Working Party, which draws from both written submissions and oral contributions, begins by commending U.S. authorities for their efforts in establishing a procedural framework to support the operation of Privacy Shield but quickly shifts to the Working Party’s concerns. Should the concerns not be addressed by the time of the second joint review, the Working Party notes that its members will “take appropriate action,” including bringing a Privacy Shield adequacy decision to national courts for reference to the Court of Justice of the European Union for a preliminary ruling.
In yet another key case dealing with the balance between citizens’ privacy and the ability of the state to intrude into it, the Court of Justice of the European Union has ruled on the compatibility with European Union law of legislation that authorises the retention of communications data, which includes personal data. The reference from the UK Court of Appeal resulted from a challenge to the Data Retention and Investigatory Powers Act 2014 brought by individuals that include Tom Watson, deputy leader of the Labour Party and represented by Liberty. Interveners include the Law Society of England and Wales, the Open Rights Group, and Privacy International. The CJEU considered the compatibility of such legislation with the e-Privacy Directive, Articles 7 and 8 of the Charter of Fundamental Rights of the European Union—which protect private and family life and personal data respectively—and its previous decision in C-293/12 Digital Rights Ireland—which invalidated the Data Retention Directive.
Ever since the first draft of the EU-US Privacy Shield framework was published in early 2016, groups opposed to the idea have indicated their intent to challenge the legality of the framework under EU law. Recently, the privacy advocacy group Digital Rights Ireland made good on that promise. Following the filing of a formal complaint on 15 September asking for an annulment of the framework by the Court of Justice of the European Union, DRI has now made public the details of its complaint.
The Court of Justice of the European Union has ruled that dynamic IP addresses are capable of constituting personal data under certain circumstances, ending years of speculation about whether such essential building blocks of the Internet qualified for protection under the EU Data Protection Directive. In Patrick Breyer v Bundesrepublik Deutschland, Breyer challenged the collection and use of dynamic IP addresses from websites run by the German Federal Government. The CJEU decided that in circumstances where a third party holds information which might likely be used to identify the user of a website when put together with the dynamic IP addresses held by the provider of that website, those IP addresses constitute personal data. In this blog post, we explore the decision in Breyer, which may impact the laws and concept of personal data of Member States beyond Germany.
On 12 July 2016, the European Commission issued its much awaited “adequacy decision” concerning the Privacy Shield framework for the transfer of personal data from the EU to the U.S. This adequacy decision is based on the latest version of the Privacy Shield, which was further negotiated and revised following the Article 29 Working Party’s April 2016 concerns with the terms of the original Privacy Shield framework. Many of our clients have questions about Privacy Shield—what it is, when it will be available for use, and how it differs from other data transfer mechanisms, among others. We have prepared blog post to answer these questions about the updated version of Privacy Shield and its implications for companies engaging in trans-Atlantic data flows.
One of Harry Houdini’s most difficult tricks consisted of escaping from a nail-fastened and rope-bound wooden crate with manacles on his hands and feet, while submerged in New York’s East River. That feat is starting to look straightforward when compared to the prospect of lawfully exporting personal data out of the European Union. The restrictions on transfers of data to jurisdictions that do not provide an adequate level of protection have been in place for more than 20 years. And while these restrictions have not prevented the development of the digital economy, judging by this issue’s current direction of travel, we could be facing a situation from which not even the great Houdini could escape.
From the moment that the Chairman of the Article 29 Working Party, Isabelle Falque-Pierrotin, announced at a press conference on 3rd February this year that the Working Party would assess the standing of the EU-US Privacy Shield under EU law, privacy professionals have been waiting to see what the Working Party’s view would be. Earlier this week, on 13th April, the Working Party provided their initial opinion. On the one hand, the Working Party welcomed the significant improvements of the Privacy Shield as a positive step forward. Yet, on the other hand, the Working Party set out their strong concerns on the commercial aspects of the Privacy Shield and the ability for US public authorities to access data transferred under the Privacy Shield. The opinion concluded by urging the European Commission to resolve these concerns and improve the Privacy Shield.
In a thorough legal analysis of the EU-U.S. Privacy Shield framework, a report from Hogan Lovells says the framework would stand up in the Court of Justice of the European Union, and the true level of data protection afforded by the Privacy Shield framework will only be demonstrated by its functioning and the practices of its participants.
On February 29, 2016 and after more than two years of negotiations with the U.S. Department of Commerce, the European Commission released its draft Decision on the adequacy of the new EU–U.S. Privacy Shield program, accompanied by new information on how the Program will work. The Privacy Shield documentation is significantly more detailed than that associated with its predecessor, the EU-U.S. Safe Harbor, as it describes more specifically the measures that organizations wishing to use the Privacy Shield must implement. Importantly, the Privacy Shield provides for additional transparency and processes associated with U.S. government access to the personal data of EU individuals.
It’s close to 7pm on a Friday evening and my team are trying their best to manage our clients’ stress and frantic desperation. Jokes about how much they love Max Schrems are shared by email. In the meantime, we are diligently working our way through endless charts of dataflows and attempting to cover every single […]