On June 28, 2018 the European Court of Human Rights decided that the German Supreme Court had correctly denied two individuals their “right to be forgotten” requests in connection with press archives relating to a 1991 murder. The German Supreme court reasoned that the interests of the public in having access to the information outweighed the interference with the plaintiff’s privacy rights. Upon hearing the case, the ECtHR agreed and found that Germany had correctly applied the balancing test relating to right to be forgotten claims.
Part 5 of Future-Proofing Privacy: New and Stronger Rights. The Regulation aims to strengthen the rights of individuals. It does so by retaining rights that already exist under the Data Protection Directive and introducing the new rights of data portability, the right to be forgotten, and certain rights in relation to profiling. In this chapter we look at each of these rights in turn and assess the likely practical impact that the changes brought about by the Regulation will have on organisations.
Part 2 of Future-Proofing Privacy: Scope of the Application of the Law. 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. Unlike EU ‘directives’, EU ‘regulations’ are by nature directly effective in EU Member States and so do not require further implementation into national laws. Previously, European data protection law was governed by the Data Protection Directive. It was the responsibility of Member States to implement the Data Protection Directive into their national law. When the Regulation becomes law, it will apply immediately throughout the EU due to its direct effect. As a consequence, national data protection acts will cease to be relevant for all matters falling within the scope of the Regulation.
The Right to be Forgotten Law imposes an obligation on search engines that disseminate adverts targeted at consumers located in Russia to remove search results listing information on individuals where such information is unlawfully disseminated, untrustworthy, outdated, or irrelevant (i.e. the information is no longer substantially relevant to the individual in question due to subsequent events or the actions of individuals). The Law includes exemptions where a search engine does not have to comply – (i) information on events reporting a crime where the limitation period for criminal liability has not expired; as well as (ii) crimes committed by an individual where their conviction record has not been erased.
With the aim of keeping pace alongside European practice, on July 13th 2015, the Russian President signed into law a bill amending the Federal Law “On Information, information technologies and on protection of information” No. 149-FZ of 27 July 2006. This law introduces in Russia the so-called “right to be forgotten” or “right to oblivion” and will take effect on January 1st 2016.
The Regulation aims to strengthen the rights of individuals. It does so by retaining rights that already exist under the Data Protection Directive and introducing the new rights of data portability, the right to be forgotten, and certain rights in relation to profiling. In this chapter we look at each of these rights in turn and assess the likely practical impact that the changes brought about by the Regulation will have on organisations. This entry is an excerpt from Hogan Lovells’ “Future-proofing privacy: A guide to preparing for the EU Data Protection Regulation.”
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 “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.
In an Op-Ed for the National Post entitled “Sorry, but there’s no online ‘right to be forgotten’,” privacy advocates Ann Cavoukian and Christopher Wolf team up to consider the consequences of the European Court of Justice’s “Right to Be Forgotten” ruling. The pair focus on potential conflicts created by the Right to Be Forgotten between the right to privacy and that of free expression and highlight the plausible outcome that companies, in their new forced role as online censors, may “err on the side of deleting links to information.”
A recent article by Hogan Lovells provides key takeaways for businesses in light of last week’s landmark ruling by the European Court of Justice that in effect judicially sanctioned a “right to be forgotten” allowing data subjects to scrub their names from a public record while also extending jurisdiction under European data protection law to include non-EU companies that may have a branch or subsidiary in the European Union and that collect data in the context of business activities in the European Union.
On Wednesday, Harriet Pearson, a partner in Hogan Lovells’ Privacy and Information Management Practice, appeared on the Cyberlaw and Business Report Internet radio show to discuss newly enacted California privacy laws. This blog post contains a link to the interview and a downloadable podcast.
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.
The New York Times reported on May 13 that U.S. companies showed up in force at the International Data Protection Day conference that day in Berlin. The Times article also mentioned the presence of Hogan Lovells at the conference. In addition to the heightened interest in data protection evidenced by U.S. business that is described in the NY Times, the Berlin conference showcased the continued sparring between the EU and the U.S. on the adequacy of U.S. privacy laws and also provided a comprehensive update on data protection developments worldwide. The topics for the day began with the proposed EU data protection regulation and ended with U.S. privacy and security enforcement, with numerous developments in other countries sandwiched in between.
On April 23, the French data protection authority, the CNIL (Commission Nationale de l’Informatique et des Libertés), published its annual report for 2012, emphasizing a significant increase in complaints, audits, and sanctions. In this blog post, we review each of these topics addressed by the CNIL’s report.
Jan Albrecht, the rapporteur for the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs, released a draft report last month with key proposals to amend the European Commission’s proposed Regulation on data protection. The report includes a total of 350 amendments to the original proposal. Highlights of the 215-page report include the following:
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 […]
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.
CNIL’s recently-released annual report gives insight from France’s authority into sanctions, the right to be forgotten, whistleblowing, and what it believes are several shortcomings in the proposed EU regulation.
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.
The Article 29 Working Party released on March 29, 2012 its opinion on the European Commission’s proposed new data protection Regulation and Directive (WP191 – Opinion 01/2012 on the data protection reform proposals). The Working Party expresses strong reservations about the proposed Directive on data processing for police and criminal justice matters, criticizing the Commission’s […]
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.
We are pleased to provide an English language translation of Paris Office Partner Winston Maxwell’s article examining the European Commission’s proposed regulation on data protection, focusing on the Commission’s choice of a regulation as opposed to a directive, and the new obligations that will be imposed on companies, including the accountability principle, privacy by design and the obligation to conduct privacy impact assessments (PIA) for certain kinds of processing. The article describes the proposed changes to the rules on applicable law, which are designed to bring certain non-European websites within the scope of European privacy rules, the proposed “right to be forgotten” and right to data portability.