A number of legislative proposals seeking to amend the California Consumer Privacy Act are moving forward following an April 23 hearing before the California Assembly’s Committee on Privacy and Consumer Protection in which the bills were approved. The bills will now advance to the Assembly’s Appropriations Committee before being voted on by the full Assembly and potentially advancing to the California Senate for consideration.
The consumer industry is evolving at lightning speed, and the way consumer businesses operate is shifting. In this year’s edition of Consumer Horizons, the Hogan Lovells global Consumer team identifies trends that will impact food and beverages companies, fashion and luxury goods producers, retailers, consumer electronics manufacturers, and other consumer businesses throughout 2019. Members of Hogan Lovells’ Privacy and Cybersecurity team contributed to Consumer Horizons 2019 to highlight some key privacy and data protection issues that businesses in the consumer industry should take note of.
The European Data Protection Board has adopted the narrowest possible interpretation of ‘contractual necessity’ as a ground for processing of personal data. The Guidelines 2/2019 on the processing of personal data under Article 6(1)(b) GDPR in the context of the provision of online services to data subjects (adopted on April 9, 2019 and open for consultation until May 24, 2019) provide a detailed assessment of the regulator’s interpretation of the law.
The California legislature is considering significant amendments to the California Consumer Privacy Act ahead of the law’s January 1, 2020 implementation date. Of particular note has been the potential for CCPA amendments to expand the private right of action beyond violations of businesses’ duty to implement and maintain reasonable security procedures to instead cover violations of any CCPA rights.
In June of 2018, California passed the California Consumer Privacy Act, which seeks to give consumers additional safeguards regarding their personal information. The CCPA will become effective January of 2020 and may impact companies in the education sector, including the larger education technology companies. While the CCPA does not apply to nonprofit educational institutions, it may apply to certain for-profit educational institutions, third-party service providers, and others in the education space. If an educational entity meets the threshold requirements below or it processes information on behalf of such an entity, it should prepare for CCPA implementation by January 2020.
2018 was a momentous year for data protection and cyber security regulation globally – the implementation of the European Union’s General Data Protection Regulation (GDPR) was, of course, the main event. The shockwaves of GDPR hit APAC with full force, coupled with the promulgation of an important GDPR-inspired national standard in China and the tabling of a draft data protection law in India that shares the same lineage. Rising public awareness of data protection concerns, due to the ever increasing volume and scale of cyber incidents in APAC, means that these issues are front and centre for organizations in terms of brand values, effective risk management and stewardship of increasingly valuable data assets. Our Guide provides a practical toolkit for organizations seeking to create an effective data protection and cyber security compliance program.
Join us this month as we address questions about the groundbreaking California Consumer Protection Act, consumer trust issues, TCPA, trends in global privacy enforcement, navigating ePrivacy requirements, and the GDPR as Brexit nears.
The Federal Trade Commission issued notices on March 5 seeking public comment on proposed amendments to the regulations implementing the Gramm-Leach-Bliley Act, commonly known as the Safeguards Rule and Privacy Rule. Once the notices are published in the Federal Register comments must be received within 60 days. The proposed changes to the Safeguards Rule add a number of more detailed security requirements, whereas the proposed changes to the Privacy Rule are more focused on technical changes to align the Rule with changes in law over the past decade.
On 7 March 2019 the Dutch Data Protection Authority published guidance that it considers “cookie walls” to violate the GDPR. A cookie wall is a pop-up on a website that blocks a user from access to the website until he or she consents to the placing of tracking cookies or similar technologies. Under current Dutch cookie law, functional and analytical cookies can be used without consent. Tracking cookies like those used for advertising may only be used if a visitor has given consent. According to the Dutch DPA, the use of a cookie wall results in a “take it or leave it” approach. The Dutch DPA explains that this practice is not compliant with the GDPR as consent resulting from a cookie wall is not freely given, because withholding consent has negative consequences for the user as the user is not allowed access to the website.
On February 27, 2019, the Federal Trade Commission (“FTC”) announced that it settled with the operators of a video social networking app for a record civil penalty of $5.7 million under the Children’s Online Privacy Protection Act (“COPPA”). This FTC COPPA action was notable not just for the size of the penalty, but also because of the joint statement by the two Democratic Commissioners, Rebecca Slaughter and Rohit Chopra, that future FTC enforcement should seek to hold corporate officers and directors accountable for violations of consumer protection law.
A bill introduced to amend the California Consumer Privacy Act of 2018 (“CCPA” or the “Act”) could greatly expand the risks to businesses that collect the personal information of California consumers. Senate Bill 561 (“SB 561”) would expand the CCPA’s private right of action to any violation of a consumer’s CCPA rights, remove the existing 30-day cure period, and eliminate businesses’ right to consult the AG’s office regarding compliance. SB 561 would not impact the CCPA’s current effective date of January 1, 2020.
With the coming into effect of the General Data Protection Regulation (“GDPR”), those conducting clinical trials in the EU face a complex set of rules ranging from lawful grounds for processing and transparency to restrictions on data transfers and secondary uses. To assist with this task the European Commission is in the process of adopting a Q&A document on which it has sought the advice from the European Data Protection Board (“EDPB”).
The Illinois Supreme Court ruled on January 25 in Rosenbach v. Six Flags Entertainment Corp. that a plaintiff can allege a violation of rights under the state’s Biometric Information Protection Act (BIPA) even without alleging “injury or damage beyond infringement of the rights afforded them under the law.” The court decided the issue solely as a matter of statutory construction under Illinois law. This decision will have a major impact on a number of pending BIPA lawsuits and is likely to result in increased BIPA litigation given the availability of statutory damages and attorneys’ fees under the law.
Right now, the whole of the U.K. appears to be on the same spot looking over a precipice. However, this is not the moment to be blind. As politicians struggle to find a magic formula for a prosperous Brexit, businesses are stepping up their efforts to mitigate the damage of a possible “no-deal Brexit.” The data protection community is no different. The proposed withdrawal agreement would have preserved the status quo in data protection terms, at least until the end of the transition period in December 2020. However, if the U.K. leaves the EU without a deal, the implications for international data flows and privacy compliance generally will be severe. Therefore, British pragmatism demands an urgent and thorough approach to preparing for the eventuality of a no-deal Brexit.
In this hoganlovells.com interview, Mark Parsons, a Hogan Lovells partner based in Hong Kong, summarizes the current status of IoT-related policies in the Asia-Pacific region and discusses changes anticipated in 2019.
The Brazilian General Data Protection Law (“Lei Geral de Proteção de Dados” or “LGPD”), passed by Congress on 14 August 2018, will come into effect on 15 February 2020. The new data protection law significantly improves Brazil’s existing legal framework by regulating the use of personal data by the public and private sectors. Very similar to the General Data Protection Regulation (“GDPR”) implemented in the European Union, the LGPD imposes strict regulations on the collection, use, processing, and storage of electronic and physical personal data. In conjunction with the passing of the LGPD, the National Data Protection Authority will be created in order to adequately implement the new legislation.
Hogan Lovells partner Bret Cohen recently participated in the webinar “HR Data Privacy – Protecting Privacy in Global Diversity and Inclusion Initiatives,” hosted by BrightTALK. In this webinar, Bret and Jackie Wilkosz of Aleada Consulting discussed issues that arise at the intersection of global privacy laws and diversity and inclusion initiatives. The slide deck and a recording of the webinar are made available in this blog post.
Amid the constitutional and political uncertainties surrounding the Brexit process, the UK Government has provided welcome assurance on the data protection front. Guidance issued by the Department for Digital, Culture, Media & Sport (DCMS) confirms how UK data protection law will work in the event the UK leaves the EU without a deal. Whilst the Government still regards a No Deal Brexit as “unlikely”, given the extremely severe implications of that scenario for transfers of personal data into and out of the UK, the DCMS confirmation is hugely helpful in terms of the preparations needed for that eventuality.
One of the most controversial elements of the California Consumer Privacy Act (“CCPA”) is the establishment of an “anti-discrimination” right – businesses may not “discriminate” against consumers for exercising certain rights under the CCPA, and they will need to assess whether and how they can require consumers to accept certain data practices as a condition of service. Compliance would be challenging even if the provision were articulated clearly, but as we have discussed in this blog series, the accelerated drafting process and passage of the CCPA earlier this year left little time for public comment and responsive amendments. As a result, the law includes a series of ambiguities that complicate compliance, and nowhere is that more apparent than in the anti-discrimination provision.
This entry in Hogan Lovells’ ongoing series on the CCPA focuses on the law’s anti-discrimination clause, its ambiguities and potentially contradictory provisions, and impact on businesses.
The California Consumer Privacy Act of 2018 (“CCPA”) exempts information that is collected, processed, sold, or disclosed pursuant to the federal Gramm-Leach-Bliley Act (“GLBA”), and its implementing regulations (the “Privacy Rule”), or the California Financial Information Privacy Act (“CFIPA”). It does not exempt financial institutions altogether from its requirements where a financial information is processing information not subject to these regimes. In such situations, a financial institution must comply with a wide array of CCPA obligations, including requirements to make certain disclosures to consumers and to provide certain rights to consumers, such as the right to stop “sales” of their personal information and the right to access data that a business has collected about them. Determining whether information a financial institution processes is covered by the exemption or not can be challenging and is something that financial institutions will need to analyze for their operations.
This blog post provides background on the scope of the exemption and an overview of key considerations for financial institutions developing CCPA compliance programs.
In the digital age, data is everything. “Big Data” feeds countless business processes and offerings. Businesses rely on data to enhance revenue and drive efficiency, whether by better understanding the needs of existing customers, reaching new ones in previously unimagined ways, or obtaining valuable insights to guide a wide array of decisions. Data also drives developments in artificial intelligence, automation, and the Internet of Things. Come 2020, the California Consumer Privacy Act (“CCPA”) may significantly impact businesses’ data practices, with new and burdensome compliance obligations such as “sale” opt-out requirements and, in certain circumstances, restrictions on tiered pricing and service levels. This entry in Hogan Lovells’ ongoing series on the CCPA will focus on implications for data-driven businesses–the rapidly increasing number of businesses that rely heavily on consumer data, whether for marketing, gaining marketplace insights, internal research, or use as a core commodity.
Join us in December as we discuss what changes to the HIPAA Privacy Rule could and should look like as well as the best practices for developing and implementing global diversity and inclusion initiatives that protect worker and applicant privacy.
The Federal Trade Commission (FTC) recently published a paper recapping its December 2017 Informational Injury Workshop. Workshop participants, including academics, industry experts, consumer advocates, and government researchers, discussed what types of consumer harm might qualify as “substantial injury” under the FTC Act and what factors should be considered. The paper noted that several important points emerged from the workshop.
On December 29, 2017, the Standardization Administration of China, jointly with the PRC General Administration of Quality Supervision, Inspection and Quarantine, issued the Information Security Technology – Personal Information Security Specification, which officially came into effect on May 1, 2018. The Specification has, in very practical terms, become an important point of reference in evaluating the complex overlay of data protection compliance requirements found in the Cyber Security Law, the Law on the Protection of Consumer Rights and Interests, the e-Commerce Law and other enactments and measures.