Privacy & Information Security Law Blog

The concept of regulatory sandboxes has gained traction in the data protection community. Since the UK Information Commissioner’s Office (the “ICO”) completed its pilot program of regulatory sandboxes in September 2020, two European Data Protection Authorities (“DPAs”) have created their own sandbox initiatives following the ICO’s framework.

On February 5, 2020, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted a response to the European Commission’s (the “Commission’s”) public consultation on the Commission’s Proposal for a Regulation on European Data Governance (the “Data Governance Act,” or “DGA”). This proposal is the first set of initiatives announced under the broader European Data Strategy.

On January 13, 2021, Advocate General (“AG”) Michal Bobek of the Court of Justice of the European Union (“CJEU”) issued his Opinion in the Case C-645/19 of Facebook Ireland Limited, Facebook Inc., Facebook Belgium BVBA v. the Belgian Data Protection Authority (“Belgian DPA”).

On November 25, 2020, the European Commission published its Proposal for a Regulation on European Data Governance (the “Data Governance Act”). The Data Governance Act is part of a set of measures announced in the 2020 European Strategy for Data, which is aimed at putting the EU at the forefront of the data empowered society. The European Commission also released a Questions & Answers document and a Factsheet on European data governance.

On November 24, 2020, the European Parliament endorsed the new directive on representative actions for the protection of the collective interests of consumers (the “Collective Redress Directive”). The Collective Redress Directive requires all EU Member States to put in place at least one effective procedural mechanism allowing qualified entities to bring representative actions to court for the purpose of injunction or redress. The Collective Redress Directive was presented in April 2018 by the European Commission and is part of the European Commission’s New Deal for Consumers. The Collective Redress Directive was proposed as a response to several scandals related to breaches of consumers’ rights by multinational companies.

On May 29, 2020, the German Federal Court of Justice (Bundesgerichtshof, “BGH”), Germany’s highest court for civil and criminal matters, issued its ruling on case Planet49 (I ZR 7/16) regarding consent requirements for the use of cookies and telemarketing activities. In October 2017, the BGH suspended its proceedings and submitted questions to the Court of Justice of the European Union (“CJEU”) for a preliminary ruling regarding the effectiveness of obtaining consent for the use of cookies through a pre-ticked checkbox. As we have previously reported, the CJEU answered these questions in its judgement in Planet49 GmbH v. Verbraucherzentrale Bundesverband e.V. (C-673/17), which was issued on October 1, 2019.

On October 1, 2019, the Court of Justice of the European Union (“CJEU”) issued its decision in an important case involving consent for the use of cookies by a German business called Planet49. Importantly, the Court held that (1) consent for cookies cannot be lawfully established through the use of pre-ticked boxes, and (2) any consent obtained regarding cookies cannot be sufficiently informed in compliance with applicable law if the user cannot reasonably comprehend how the cookies employed on a given website will function.

On July 29, 2019, the Court of Justice of the European Union (the “CJEU”) released its judgment in case C-40/17, Fashion ID GmbH & Co. KG vs. Verbraucherzentrale NRW eV. The Higher Regional Court of Düsseldorf (Oberlandesgericht Düsseldorf) requested a preliminary ruling from the CJEU on several provisions of the former EU Data Protection Directive of 1995, which was still applicable to the case since the court proceedings had started before the implementation of the EU General Data Protection Regulation (“GDPR”).

On June 1, 2019, New Decree No. 2019-536 (the “Implementing Decree”) took force, enabling the French Data Protection Act, as amended by an Ordinance of December 12, 2018, likewise to enter into force. This marks the completion of the adaption of French law to the EU General Data Protection Regulation (“GDPR”) and the EU Police and Criminal Justice Directive (Directive (EU) 2016/680).

On April 12, 2019, the European Data Protection Board (“EDPB”) published draft guidelines 2/2019 on the processing of personal data in the context of the provision of online services to data subjects (the “Guidelines”).

On March 21, 2019, Advocate General Maciej Szpunar (“Advocate General”) of the Court of Justice of the European Union (“CJEU”) issued an Opinion in the Case C-673/17 of Planet49 GmbH v Bundesverband der Verbraucherzentralen und Verbraucherverbände – Verbraucherzentrale Bundesverband e.V. (i.e., the Federation of German Consumer Organizations, the “Bundesverband”), which is currently pending before the CJEU. In the Opinion, the Advocate General provided his views on how to obtain valid consent to the use of cookies in the case.

On January 10, 2019, Advocate General Maciej Szpunar (“Advocate General”) of the Court of Justice of the European Union (“CJEU”) issued an Opinion in the case of Google v. CNIL, which is currently pending before the CJEU. In the Opinion, the Advocate General provided his views concerning the territorial scope of the right to be forgotten under the relevant EU Data Protection Directive in the case at hand.

On December 20, 2018, the French data protection authority (the “CNIL”) announced that it levied a €400,000 fine on Uber France SAS, the French establishment of Uber B.V. and Uber Technologies Inc., for failure to implement some basic security measures that made possible the 2016 Uber data breach.

On February 12, 2018, the Luxembourg data protection authority (Commission nationale pour la protection des donées, “CNPD”) published on its website (in English and French) a form to be used for the purpose of compliance with data breach notification requirements applicable under the EU General Data Protection Regulation (the “GDPR”). The CNPD also published questions and answers (“Q&As”) regarding the requirements.

On January 29, 2018, the Centre for Information Policy Leadership (“CIPL”) at Hunton & Williams LLP submitted formal comments to the Article 29 Working Party (the “Working Party”) on its Guidelines on Consent (the “Guidelines”). The Guidelines were adopted by the Working Party on November 28, 2017, for public consultation.

On October 24, 2017, an opinion issued by the EU’s Advocate General Bot (“Bot”) rejected Facebook’s assertion that its EU data processing activities fall solely under the jurisdiction of the Irish Data Protection Commissioner. The non-binding opinion was issued in relation to the CJEU case C-210/16, under which the German courts sought to clarify whether the data protection authority (“DPA”) in the German state of Schleswig-Holstein could take action against Facebook with respect to its use of web tracking technologies on a German education provider’s fan page without first providing notice.

On September 14, 2017, the UK Government introduced a new Data Protection Bill (the “Bill”) to Parliament. The Bill is intended to replace the UK’s existing Data Protection Act 1998 and enshrine the EU General Data Protection Regulation (the “GDPR”) into UK law once the UK has left the European Union. The GDPR allows EU Member States to enact, via national law, exemptions from the various provisions of the GDPR, which the Bill also seeks to implement.

The Article 29 Working Party (“Working Party”) recently issued its Opinion on data processing at work (the “Opinion”). The Opinion, which complements the Working Party’s previous Opinion 08/2001 on the processing of personal data in the employment context and Working document on the surveillance of electronic communications in the workplace, seeks to provide guidance on balancing employee privacy expectations in the workplace with employers’ legitimate interests in processing employee data. The Opinion is applicable to all types of employees and not just those under an employment contract (e.g., freelancers).

On March 1, 2017, Hunton & Williams senior consultant attorney Rosemary Jay presented evidence on the data protection reform package and the impact of Brexit to the UK Parliament’s House of Lords EU Home Affairs Sub-Committee meeting. 

Recently, the National Privacy Commission (the “Commission”) of the Philippines published the final text of its Implementing Rules and Regulations of Republic Act No. 10173, known as the Data Privacy Act of 2012 (the “IRR”). The IRR has a promulgation date of August 24, 2016, and went into effect 15 days after the publication in the official Gazette.

On September 8, 2016, Advocate General Paolo Mengozzi of the Court of Justice of the European Union (“CJEU”) issued his Opinion on the compatibility of the draft agreement between Canada and the European Union on the transfer of passenger name record data (“PNR Agreement”) with the Charter of Fundamental Rights of the European Union (“EU Charter”). This is the first time that the CJEU has been called upon to issue a ruling on the compatibility of a draft international agreement with the EU Charter.

Lisa J. Sotto, partner and head of Hunton & Williams LLP’s Global Privacy and Cybersecurity practice group, recently spoke at Bloomberg Law’s Second Annual Big Law Business Summit. In Part 1 of the panel discussion, Lisa describes the dramatic changes in the legal landscape of privacy over the last 10 to 15 years, discussing the emergence of privacy laws such as “the Gramm-Leach-Bliley Act for the financial sector, HIPAA for the health care sector and…of course, the local implementation of the European Data Protection Directive.” She then continues to note an ...

On July 25, 2016, the Article 29 Working Party (the “Working Party”) and the European Data Protection Supervisor (“EDPS”) released their respective Opinions regarding the review of Directive 2002/58/EC on privacy and electronic communications (the “ePrivacy Directive"). Both the Working Party and the EDPS stressed that new rules should complement the protections available under the EU General Data Protection Regulation (“GDPR”).

On July 19, 2016, Advocate General Saugmandsgaard Oe (“Advocate General”), published his Opinion on two joined cases relating to data retention requirements in the EU, C-203/15 and C-698/15. These cases were brought following the Court of Justice for the European Union’s (“CJEU's”) decision in the Digital Rights Ireland case, which invalidated Directive 2006/24/EC on data retention. The two cases, referred from courts in Sweden and the UK respectively, sought to establish whether a general obligation to retain data is compatible with the fundamental rights to privacy and data protection under EU law.

On May 24, 2016, the UK Information Commissioner’s Office (“ICO”) published priorities for preparing for the EU General Data Protection Regulation (“GDPR”).

The ICO’s priorities for issuing guidance to assist organizations with GDPR preparation are split into three phases.

On April 14, 2016, after four years of drafting and negotiations, the long awaited EU General Data Protection Regulation (“GDPR”) has been adopted at the EU level. Following the EU Parliament’s Committee on Civil Liberties, Justice and Home Affairs’ vote earlier this week and the EU Parliament in plenary session, the GDPR is now officially EU law and will directly apply in all EU countries, replacing EU and national data protection legislation.

On April 12, 2016, the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs voted to approve the EU General Data Protection Regulation (“GDPR”) by a 54-3 vote, with one abstention. The GDPR replaces Directive 95/46/EC, enacted in 1995, and will significantly change EU data protection laws.

This development clears the way for the European Parliament to rubber stamp the GDPR at a plenary session on April 14, 2016, completing the legislative process for adoption of the GDPR. The GDPR is expected to be published in the Official Journal of the European Union ...

On April 11, 2016, the European Commission launched a public consultation to evaluate and review Directive 2002/58/EC on the processing of personal data and the protection of privacy in the electronic communications sector, also known as the e-Privacy Directive.

Technological advances and the advent of the EU General Data Protection Regulation (“GDPR”) have prompted the European Commission to review the e-Privacy Directive, which was last updated in 2009.

On February 25, 2016, the Court of Justice of the European Union (“CJEU”) heard arguments on two questions referred by the German Federal Court of Justice (Bundesgerichtshof). The first question was whether or not IP addresses constitute personal data and therefore cannot be stored beyond what is necessary to provide an Internet service.

On November 6, 2015, the European Commission published a communication and a Q&A document addressed to the European Parliament and European Council on the transfer of personal data from the EU to the U.S. under EU Data Protection Directive 95/46/EC (the “Directive”), following the decision by the Court of Justice of the European Union invalidating the European Commission’s Safe Harbor Decision.

On October 14, 2015, the data protection authority (“DPA”) in the German state of Schleswig-Holstein (Unabhängiges Landeszentrum für Datenschutz) issued a position paper (the “Position Paper”) on the Safe Harbor Decision of the Court of Justice of the European Union (the “CJEU”).

On October 6, 2015, the Court of Justice of the European Union (the “CJEU”) issued its judgment in the Schrems v. Facebook case, following the Opinion of the Advocate General published on September 23, 2015. In its judgment, the CJEU concluded that:

• The national data protection authorities (“DPAs”) have the power to investigate and suspend international data transfers even where the European Commission (the “Commission”) has adopted a decision finding that a third country affords an adequate level of data protection, such as Decision 2000/520 on the adequacy of the protection provided by the Safe Harbor Privacy Principles (the “Safe Harbor Decision”).
• The Safe Harbor Decision is invalid.

On October 1, 2015, the Court of Justice of the European Union (the “CJEU”) issued its judgment in Weltimmo v Nemzeti (Case C-230/14). Weltimmo, a company registered and headquartered in Slovakia, runs a website that allows property owners in Hungary to advertise their properties. The CJEU stated that, in some cases, Weltimmo had failed to delete the personal data of the advertisers upon request, and also had sent debt collectors to some advertisers despite their earlier attempts to cancel their accounts. The advertisers complained to the Hungarian Data Protection Authority (“DPA”), which investigated the matter and issued a fine of HUF 10 million (approximately 36,500 USD) against Weltimmo.

On September 23, 2015, Advocate General of the European Court of Justice Yves Bot issued his Opinion in the case of Max Schrems, which is currently pending before the Court of Justice of the European Union (the “CJEU”). In the opinion, the Advocate General provided his views concerning two key issues related to the U.S.-EU Safe Harbor Framework: (1) the powers of national data protection authorities to investigate and suspend international data transfers made under the Safe Harbor Framework and (2) the ongoing validity of the European Commission’s Safe Harbor adequacy decision (Decision 2000/520).

On July 28, 2015, the UK Supreme Court announced its decision to grant permission in part for Google Inc. (“Google”) to appeal the England and Wales Court of Appeal’s decision in Google Inc. v Vidal-Hall and Others.

On June 16, 2015, the Article 29 Working Party (the “Working Party”) adopted an Opinion on Privacy and Data Protection Issues relating to the Utilization of Drones (“Opinion”). In the Opinion, the Working Party provides guidance on the application of data protection rules in the context of Remotely Piloted Aircraft Systems, commonly known as “drones.”

Hunton & Williams’ EU Privacy and Cybersecurity practice lawyers recently authored The Proposed EU General Data Protection Regulation – A guide for in-house lawyers (the “Guide”), addressing the key impacts of the forthcoming changes to EU data protection law. Current EU data protection law is based on the EU Data Protection Directive 95/46/EC (the “Directive”), which was introduced in 1995. An updated and more harmonized data protection law, in the form of a Regulation, has been proposed by the EU’s legislative bodies to replace the Directive. The Guide is intended to assist in-house lawyers in understanding the likely impact of the Regulation on businesses. While still under negotiation, the Regulation will significantly change the landscape of EU privacy and data protection in several key areas, including:

On March 27, 2015, the England and Wales Court of Appeal issued its judgment in Google Inc. v Vidal-Hall and Others. Google Inc. (“Google”) appealed an earlier decision by Tugendhat J. in the High Court in January 2014. The claimants were users of Apple’s Safari browser who argued that during certain months in 2011 and 2012, Google collected information about their browsing habits via cookies placed on their devices without their consent and in breach of Google’s privacy policy.

On February 5, 2015, the Article 29 Working Party (the “Working Party”) published a letter that responds to a request of the European Commission to clarify the scope of the definition of health data in connection with lifestyle and wellbeing apps. In the annex to this letter, the Working Party identifies criteria to determine when personal data qualifies as “health data,” a special category of data receiving enhanced protection under the EU Data Protection Directive 95/46/EC (the “Directive”). The Working Party further discusses the current legal regime for the processing of such health data and provides its view on the requirements for further processing of health data for historical, statistical and scientific research under the Directive. The letter also includes the Working Party’s recommendations for the regime that should be provided in the proposed EU General Data Protection Regulation (the “Proposed Regulation”).

On December 11, 2014, in response to a request for a preliminary ruling from the Supreme Administrative Court of the Czech Republic, the Court of Justice of the European Union (“CJEU”) ruled that the use of CCTV in the EU should be strictly limited, and that the exemption for “personal or household activity” does not permit the use of a home CCTV camera that also films any public space.

On November 26, 2014, the Article 29 Working Party (the “Working Party”) released a Working Document providing a cooperation procedure for issuing common opinions on whether “contractual clauses” comply with the European Commission’s Model Clauses (the “Working Document”).

At the International Association of Privacy Professionals’ (“IAPP’s”) recent Europe Data Protection Congress in Brussels, the Centre for Information Policy Leadership at Hunton & Williams (the “Centre”) led two panels on the risk-based approach to privacy as a tool for implementing existing privacy principles more effectively and on codes of conduct as a means for creating interoperability between different privacy regimes.

On November 25, 2014, the Article 29 Working Party (the “Working Party”) adopted Opinion 9/2014 (the “Opinion”) on device fingerprinting. The Opinion addresses the applicability of the consent requirement in Article 5.3 of the e-Privacy Directive 2002/58/EC (as amended by Directive 2009/136/EC) to device fingerprinting. As more and more website providers suggest using device fingerprinting instead of cookies for the purpose of providing analytics or for tracking purposes, the Working Party clarifies how the rules regarding user consent to cookies apply to device fingerprinting. Thus, the Opinion expands on Opinion 04/2012 on the Cookie Consent Exemption.

On November 18, 2014, the Centre for Information Policy Leadership at Hunton & Williams (the “Centre”) held the second workshop in its ongoing work on the risk-based approach to privacy and a Privacy Risk Framework. Approximately 70 Centre members, privacy regulators and other privacy experts met in Brussels to discuss the benefits and challenges of the risk-based approach, operationalizing risk assessments within organizations, and employing risk analysis in enforcement. In discussing these issues, the speakers emphasized that the risk-based approach does not change the obligation to comply with privacy laws but helps with the effective calibration of privacy compliance programs.

On October 28, 2014, the German Federal Court of Justice referred the question of whether an IP address constitutes personal data under the EU Data Protection Directive 95/46/EC (“EU Data Protection Directive”) to the European Court of Justice (“ECJ”). The German court referred the question to the ECJ for a preliminary ruling in connection with a case that arose in 2008 when a German citizen challenged the German federal government’s storage of the dynamic IP addresses of users on government websites. The citizen’s claim initially was rejected by the court of first instance. The claim was granted, however, by the court of second instance to the extent it referred to the storage of IP addresses after the users left the relevant government websites. Subsequently, both parties appealed the decision to the German Federal Court of Justice.

On October 16, 2014, the 36th International Conference of Data Protection and Privacy Commissioners in Mauritius hosted a panel including representatives from the European Data Protection Supervisor ("EDPS") and Hunton & Williams to discuss the need for a coordinated approach to net neutrality and data protection in the EU. While there are divergent views on what net neutrality should (or should not) entail, net neutrality in the EU typically refers to the principle that all Internet traffic is treated equally and without discrimination, restriction or interference.

On September 22, 2014, the Article 29 Working Party (the “Working Party”) released an Opinion on the Internet of Things (the “Opinion”) that was adopted during the last plenary session of the Working Party in September 2014. With this Opinion, the Working Party intends to draw attention to the privacy and data protection challenges raised by the Internet of Things and to propose recommendations for the stakeholders to comply with the current EU data protection legal framework.

In response to increasing interest in a “risk-based” approach among privacy experts, including policymakers working on the proposed EU General Data Protection Regulation, the Article 29 Working Party (the “Working Party”) published a statement on the role of a risk-based approach in data protection legal frameworks (the “Statement”).

On April 9, 2014, the Article 29 Working Party (the “Working Party”) issued an Opinion on using the “legitimate interests” ground listed in Article 7 of the EU Data Protection Directive 95/46/EC as the basis for lawful processing of personal data. Citing “legitimate interests” as a ground for data processing requires a balancing test, and it may be relied on only if (1) the data processing is necessary for the legitimate interests of the controller (or third parties), and (2) such interests are not overridden by the interests or fundamental rights and freedoms of the data subject. With the Opinion, the Working Party aims to ensure a common understanding of this concept.

On March 18, 2014, Brazilian lawmakers announced the withdrawal of a provision in pending legislation that would have required Internet companies to store Brazilian users’ data within the country.

On March 12, 2014, the European Parliament formally adopted the compromise text of the proposed EU General Data Protection Regulation (the “Regulation”). The text now adopted by the Parliament is unchanged and had already been approved by the Parliament’s Committee on Civil Liberties, Justice and Home Affairs in October of last year. The Parliament voted with 621 votes in favor, 10 against and 22 abstentions for the Regulation.

On January 31, 2014, the Greek Presidency of the Council of the European Union issued four notes regarding the proposed EU Data Protection Regulation. These notes, discussed below, address the following topics: (1) one-stop-shop mechanism; (2) data portability; (3) data protection impact assessments and prior checks; and (4) rules applicable to data processors.

As we previously reported, on October 21, 2013, the European Parliament approved its Compromise Text of the proposed EU General Data Protection Regulation (the “Proposed Regulation”). Hunton & Williams has now published an analysis of these proposals.

Brazilian lawmakers, including José Eduardo Cardozo, the Minister of Justice of Brazil, and Ideli Salvatti, the Secretariat of Institutional Relations, held several consensus-building meetings with party leaders over the past two weeks to reach a voting agreement on the Marco Civil da Internet (“Marco Civil”), a draft bill introduced in the Brazilian Congress in 2011. The Marco Civil would establish Brazil’s first set of Internet regulations, including requirements regarding personal data protection and net neutrality.

The Luxembourg data protection authority (Commission nationale pour la protection des donées, “CNPD”) has stated that it will not investigate complaints relating to the alleged involvement of Microsoft Luxembourg (“Microsoft”) and Skype Software S.a.r.l. and Skype Communications S.a.r.l. (collectively, “Skype”) in the PRISM surveillance program. The PRISM surveillance program involves the transfer of EU citizens’ data to the U.S. National Security Agency (the “NSA”).

On October 21, 2013, the European Parliament approved its Compromise Text of the proposed EU General Data Protection Regulation (the “Proposed Regulation”). The approval follows months of negotiations between the various parliamentary committees. The European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (“LIBE”) has been in charge of working toward an agreement on the Compromise Text in the European Parliament.

As reported by Bloomberg BNA, the Irish Office of the Data Protection Commissioner (“ODPC”) has stated that it will not investigate complaints relating to the alleged involvement of Facebook Ireland Inc. (“Facebook”) and Apple Distribution International (“Apple”) in the PRISM surveillance program.

On July 22-23, 2013, the APEC E-Commerce Business Alliance and the China International Electronic Commerce Center, a subsidiary organization of the Ministry of Commerce of the People’s Republic of China, held a seminar in Beijing entitled Workshop on the Online Data Privacy Protection in APEC Region. In addition to delegates from Mainland China, representatives from numerous other jurisdictions were in attendance, including the United States, the United Kingdom, Malaysia, Vietnam, South Korea, Hong Kong and Taiwan.

On July 24, 2013, the Conference of the German Data Protection Commissioners at both the Federal and State levels issued a press release stating that surveillance activities by foreign intelligence and security agencies threaten international data traffic between Germany and countries outside the EEA.

Senior Attorney Rosemary Jay reports from London:

On June 25, 2013, Advocate-General Jääskinen of the European Court of Justice (“ECJ”) delivered his Opinion in Google Spain S.L. and Google Inc. v Agencia Española de Protección de Datos (Case C-131/12, “Google v AEPD” or the “case”).

The case concerns Google Search results, and whether individuals have a right to erasure of search result links about them. The Opinion concludes that under current law, individuals have no such right. The European Commission’s proposed General Data Protection Regulation (the “Proposed Regulation”) would introduce a right to be forgotten. However, this Opinion appears to demonstrate unease with the basic concept of such a right.

In a recording prepared for the Centre for Information Policy Leadership at Hunton & Williams LLP’s (“Centre’s”) annual retreat, former UK Information Commissioner and Centre Global Strategy Advisor Richard Thomas discussed some of the challenges facing Big Data with respect to the purpose limitation principle set out in Article 6(1)(b) of the current EU Data Protection Directive 95/46/EC. In April 2013, the Article 29 Working Party adopted an Opinion on this topic, focusing on how to apply the purpose limitation principle in the Big Data context. Richard Thomas ...

The U.S. Department of Commerce’s International Trade Administration (“ITA”) will host a data privacy seminar in Providence, Rhode Island, on Thursday, July 18 from 8:30 – 11:00 a.m. EDT. Seminar participants will hear from Commerce privacy experts who will discuss the Obama Administration’s privacy blueprint and provide updates on significant international developments, including the U.S.-EU and U.S.-Swiss Safe Harbor Frameworks and the Asia-Pacific Economic Cooperation (“APEC”) group’s work to implement the Cross-Border Privacy Rules System. These privacy developments could have a significant impact on how companies comply with laws and privacy regulations in the United States, Asia and Europe. A representative from the Safe Harbor-certified company Textron Inc. (“Textron”) also will discuss the company’s experience developing and implementing a privacy compliance program.

On June 14, 2013, the European Data Protection Supervisor (the “EDPS”) issued an Opinion regarding a joint communication by the European Commission and the High Representative of the Union for Foreign Affairs and Security Policy, Cyber Security Strategy of the European Union: an Open, Safe and Secure Cyberspace (the “Strategy”), as well as the European Commission’s proposed draft directive to ensure uniformly high security measures for network and information security across the EU (the “NIS Directive”). The EDPS welcomes recognizing privacy and data protection as core values of a robust cybersecurity policy, as opposed to separating out security and privacy, but draws attention to several deficiencies, stating that “the ambitions of the strategy are not reflected in how it will be implemented.”

As we previously reported, on May 31, 2013, the Irish Presidency of the Council of the European Union’s Justice and Home Affairs released a draft compromise text in response to the European Commission’s proposed General Data Protection Regulation (the “Proposed Regulation”). This compromise text narrows the scope of the Proposed Regulation and seeks to move from a detailed, prescriptive approach toward a risk-based framework.

On May 31, 2013, the Council of the European Union’s Justice and Home Affairs released a draft compromise text in response to the European Commission’s proposed General Data Protection Regulation (the “Proposed Regulation”). This compromise text narrows the scope of the Proposed Regulation and seeks to move from a detailed, prescriptive approach toward a risk-based framework.

On May 30, 2013, the French Data Protection Authority (“CNIL”) launched a public consultation on the digital “right to be forgotten.”

The CNIL recalled that the principle of a digital “right to be forgotten” is established in the Proposed EU Data Protection Regulation and that this new right will have to be exercised in accordance with freedom of expression, freedom of the press and the duty of remembrance.

In this context, the CNIL decided to consult web users with a goal of defining the broad outlines of the digital right to be forgotten. The CNIL also announced that it will ...

On May 6, 2013, the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (“LIBE”) discussed the progress of the proposed General Data Protection Regulation (”Proposed Regulation”). LIBE’s lead rapporteur, Jan Philipp Albrecht, noted that, in light of the significant number of amendments tabled, more time is needed for the other rapporteurs to deliberate. As a result, the vote originally scheduled for May 29, 2013 on the lead rapporteur’s report regarding amendments to the Proposed Regulation has been postponed.

On April 2, 2013, the Article 29 Working Party (the “Working Party”) adopted an Opinion (the “Opinion”) that elaborates on the purpose limitation principle set out in Article 6(1)(b) of the current EU Data Protection Directive 95/46/EC (the “Data Protection Directive”). The Opinion analyzes the scope of this principle under the Data Protection Directive, clarifies its limits and makes recommendations to strengthen it in the proposed General Data Protection Regulation (the “Proposed Regulation”). It also focuses on how to apply this principle in the context of Big Data and open data.

On March 21-22, 2013, the data protection authorities (“DPAs”) of the Baltic states of Estonia, Latvia and Lithuania met in Riga, Latvia, for their second annual meeting to discuss several practical cooperation matters regarding data protection.

On February 12, 2013, the UK Information Commissioner’s Office published a further analysis of the European Commission’s proposed General Data Protection Regulation (the “Proposed Regulation”). This latest analysis supplements the initial analysis paper on the Proposed Regulation published on February 27, 2012. Although the general views expressed in its initial paper stand, the ICO has now provided greater detail regarding its views of the substantive provisions of the Proposed Regulation.

On March 15, 2013, European Data Protection Supervisor Peter Hustinx sent a letter to Juan Fernando López Aguilar, Chair of the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (“LIBE”), with his comments regarding certain aspects of the European Commission’s proposed revised data protection framework. On March 20, 2013, Peter Hustinx was invited to present his comments during a LIBE Committee meeting, together with the President of the Article 29 Working Party, Jacob Kohnstamm.

On March 14, 2013, the 85th Conference of the German Data Protection Commissioners concluded in Bremerhaven. This biannual conference provides a private forum for the 16 German state data protection authorities (“DPAs”) and the Federal Commissioner for Data Protection and Freedom of Information, Peter Schaar, to share their views on current issues, discuss relevant cases and adopt Resolutions aimed at harmonizing how data protection law is applied across Germany.

The U.S. Department of Commerce’s International Trade Administration (“ITA”) will host a data privacy seminar in Waltham, Massachusetts, on Monday, March 25 from 8:30 – 11:30 a.m. EST. Seminar participants will hear from a number of Commerce privacy experts who will discuss the Obama Administration’s privacy blueprint and provide updates on significant international developments involving the U.S.-European Union and U.S.-Swiss Safe Harbor Frameworks and the Asia-Pacific Economic Cooperation group’s work to implement the Cross-Border Privacy Rules System. These privacy developments could have a significant impact on your company and its compliance with laws and privacy regulations in the United States, Asia and Europe.

On February 27, 2013, the Article 29 Working Party (the “Working Party”) adopted an Opinion (the “Opinion”) addressing personal data protection issues related to the development and use of applications on mobile devices. The Opinion identifies the key data protection risks associated with mobile apps and clarifies the legal framework and obligations applicable to the various parties involved in the development and distribution of mobile apps, including app stores, app developers, operating system and device manufacturers and advertisers.

On February 27, 2013, the Article 29 Working Party (the “Working Party”) issued a statement on the European Commission’s proposed revised data protection framework (“Statement”), including the proposed General Data Protection Regulation (“Proposed Regulation”). The Working Party offered amendments to the Proposed Regulation in the form of two Annexes to the Statement on the topics of competence and lead data protection authority (“DPA”) and the exemption for household or personal activities.

On February 7, 2013, the European Commission, together with the High Representative of the Union for Foreign Affairs and Security Policy, launched their cybersecurity strategy for the European Union (“Strategy”). As part of this Strategy, the European Commission also proposed a draft directive on measures to ensure a common level of network and information security (“NIS”) across the EU (the “Directive”).

On January 22, 2013, the Article 29 Working Party released Opinion 01/2013 (the “Opinion”) on the implementing acts contained in the European Commission’s proposed General Data Protection Regulation (the “Proposed Regulation”).

Following up on the UK Information Commissioner’s Office’s (“ICO’s”) positive reaction to the European Commission’s proposed General Data Protection Regulation (the “Proposed Regulation”), the ICO has now published additional thoughts on the European Commission’s proposed revised data protection framework, reacting to the recent draft report prepared by the rapporteur to the EU Parliament’s Committee on Civil Liberties, Justice and Home Affairs, Jan Philipp Albrecht. In February 2012, the ICO released an initial analysis of the Commission’s package of proposals, which included the proposed Police and Criminal Justice Data Protection Directive (“Proposed Directive”).

On January 28, 2013, European Data Privacy Day, the London office of Hunton & Williams hosted the launch of senior attorney Rosemary Jay’s fourth edition book, Data Protection Law & Practice, by publisher Sweet & Maxwell.

In an interview with Tom Field of BankInfoSecurity, Lisa J. Sotto, partner and head of the Global Privacy and Data Security practice at Hunton & Williams LLP, discussed the top privacy trends and threats for 2013. Lisa predicts that security vulnerabilities will remain the biggest threat to privacy, particularly with the move toward mobile computing. She also talked about key issues to watch in 2013, such as online behavioral advertising, big data and evolving privacy legislation and regulation, especially in the EU and other countries around the globe.

Listen to Lisa’s ...

On January 16, 2013, the French Data Protection Authority (“CNIL”) released its opinion on the draft report issued by Jan Philipp Albrecht, the rapporteur to the EU Parliament’s Committee on Civil Liberties, Justice and Home Affairs (the “Report”). The Report included detailed amendments to the European Commission’s proposed General Data Protection Regulation (the “Proposed Regulation”) submitted by various stakeholders which Rapporteur Albrecht consolidated and distilled into a single text. The CNIL’s Report welcomes these amendments and in particular, the following:

Recently, the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (“LIBE”) released a study titled Fighting cyber crime and protecting privacy in the cloud (the “Study”). The Study originally was prepared in October 2012 at the request of the LIBE Committee by the European Parliament’s Policy Department of Citizens’ Rights and Constitutional Affairs, with the help of the Centre for European Policy Studies and the Centre d’Etudes sur les Conflits.

On January 10, 2013, the rapporteur to the EU Parliament’s Committee on Civil Liberties, Justice and Home Affairs (“LIBE”), Jan Philipp Albrecht, presented his draft report (the “Report”) on the proposed amendments to the European Commission’s proposed General Data Protection Regulation (the “Proposed Regulation”) to the LIBE Committee.

On December 19, 2012, the European Commission announced its formal recognition of personal data protection in New Zealand. The European Commission approved New Zealand’s status as a country that provides “adequate protection”  of personal data under the European Data Protection Directive 95/46/EC. This determination means that personal information from Europe may flow freely to New Zealand.  Although the law in New Zealand has been modernized over the years, it is not new.  New Zealand will be celebrating the 25th anniversary of its data protection law in 2013. Furthermore, New Zealand has been very active in the development of international standards at the OECD and APEC, and has participated in initiatives such as the Global Accountability Project. New Zealand’s request to be deemed adequate has been pending for several years. This determination follows the positive Opinion of the Article 29 Working Party issued on April 4, 2011, concerning the level of protection under New Zealand’s law.

On November 22, 2012, the UK Ministry of Justice released a written ministerial statement (“Statement”) announcing the publication of its Government Impact Assessment on the European Commission’s legislative reform package on the EU data protection framework. The European Commission has claimed that a regulation implementing a single set of data protection rules across the European Union would save businesses around €2.3 billion a year. In its Statement, the Ministry of Justice disagrees, stating that the Commission’s proposals will impose burdens that “far outweigh” the benefits. At a time of great economic upheaval across Europe, the Ministry of Justice asserts that the regulatory burden should be reduced, not increased, to stimulate growth, and that it is “difficult therefore to justify the extra red-tape and tick box compliance that the proposals represent.” The Ministry of Justice also notes that “[t]he UK Government is seriously concerned about the potential economic impact of the proposed data protection Regulation.”

On December 3, 2012, the Centre for Information Policy Leadership (the “Centre”) at Hunton & Williams will co-host a special International Association of Privacy Professionals (“IAPP”) KnowledgeNet meeting in Brussels, Belgium. The meeting will explore global developments in accountability in the context of the proposed EU Data Protection Regulation and the impact of accountability on data protection management.

• Explore how obligations on processers are likely to expand significantly;
• Learn how these new obligations will affect both processors and controllers; and
• Create a checklist for preparing for the changes ahead.

On November 13-15, 2012, delegates at the IAPP Europe Data Protection Congress in Brussels were given insight into how discussions with key policymakers are progressing. As European Parliament rapporteur and Member of the European Parliament Jan Philipp Albrecht aims to finalize the reform of the EU Data Protection Directive by the end of the current European Parliament’s mandate in 2014, this ambitious goal faces numerous hurdles.

On November 8, 2012, the 84th Conference of the German Data Protection Commissioners concluded in Frankfurt (Oder). This bi-annual conference provides a private forum for the 16 German state data protection authorities (“DPAs”) and the Federal Commissioner for Data Protection and Freedom of Information Peter Schaar to share their views on current issues, discuss relevant cases and adopt Resolutions aimed at harmonizing how data protection law is applied across Germany.

On October 26, 2012, three resolutions were adopted by the closed session of the 34th International Conference of Data Protection and Privacy Commissioners and have been published on the conference website. Below we provide an overview of these resolutions.

On October 24, 2012, the UK Justice Select Committee (the “Committee”), appointed by the House of Commons to examine the expenditure, administration and policy of the UK Ministry of Justice, published its opinion on the proposed General Data Protection Regulation (the “Proposed Regulation”) and proposed Police and Criminal Justice Data Protection Directive (the “Proposed Directive”). In the opinion, the Committee agrees that new proposals are necessary, both to update the existing data protection framework and to “confer on individuals their new rights and freedoms.” The Committee expresses reservations, however, regarding a number of key issues, and concludes that the European Union data protection proposals “need to go back to the drawing board.” The Committee notes that in its present form, the Proposed Regulation will not produce a “proportionate, practicable, affordable or effective system of data protection in the EU.”

On October 26, 2012, following the Justice Council’s meeting, Viviane Reding, Vice-President of the European Commission and Commissioner for Justice, Fundamental Rights and Citizenship, delivered a speech highlighting that the Commission’s proposed data protection law reform package is currently at a crucial stage in the negotiation process. Commissioner Reding stated that “[a] high level of data protection will turn the European Union into an international standard setter” and that “[o]nly a high level of data protection will generate trust between citizens and private enterprises.” Commissioner Reding conceded, however, that “[w]e do not want rules that place an excessive burden on business,” and that the Commission is prepared to make certain concessions relating to the draft proposals in order to “strike the right balance.”

On October 24, 2012, Peter Hustinx, the European Data Protection Supervisor, speaking at the 34th International Conference of Data Protection and Privacy Commissioners in Uruguay, called the proposed EU Data Protection Regulation an “ambitious” undertaking, designed to achieve three goals.

First, Hustinx said the regulation is intended to provide the structure for European data protection for at least the next 20 years.

Second, the draft regulation will eliminate the wide variety of requirements that has resulted from the current EU Data Protection Directive’s being transposed into national law in 27 member states.

This year, the International Conference of Data Protection and Privacy Commissioners takes place in Punta del Este, Uruguay. On October 22, 2012, Article 29 Working Party President Jacob Kohnstamm kicked off the conference with the Public Voice session, sending a clear message that the Article 29 Working Party will resist EU data protection reform proposals involving the use of consent and legitimate business interests as legal bases for data processing.

Governance for next generation data applications increasingly will depend less on individual consent, and more on ...

In the opening session of the 34th International Conference of Data Protection and Privacy Commissioners, Conference Executive Committee Chair and Article 29 Working Party President Jacob Kohnstamm introduced this year’s conference. He noted that the topic of this year’s closed session will be profiling. Kohnstamm also indicated that future DPA conferences would focus on the closed session, which typically is comprised of current and former data protection authorities. Among the speakers in the 2012 closed session is Professor Fred H. Cate, Senior Policy Advisor for the Centre for Information Policy Leadership at Hunton & Williams LLP.

On October 5, 2012, the Article 29 Working Party (the “Working Party”) issued an Opinion providing further input on the recent data protection reform discussions in the EU. The Opinion follows the Working Party’s first Opinion on the EU data protection reform proposals issued on March 23, 2012.

On July, 19, 2012, the Article 29 Working Party (the “Working Party”) issued an Opinion finding that the Principality of Monaco ensures an “adequate level of protection” for personal data within the meaning of the European Data Protection Directive (Article 25 of Directive 95/46/EC) (the “Directive”). Under the Directive, strict conditions apply to personal data transfers to countries outside the European Economic Area that are not considered to provide an “adequate” level of data protection.

On August 21, 2012, the European Commission formally approved Uruguay’s status as a country providing “adequate protection” for personal data within the meaning of the European Data Protection Directive (Article 25(6) of Directive 95/46/EC). This follows the Article 29 Working Party’s earlier favorable Opinion issued in 2010, and takes into account certain interpretative assurances and clarifications provided by Uruguay. Accordingly, transfers of personal data from the EU to Uruguay may now take place without additional intergovernmental guarantees and in accordance with applicable data protection provisions.

Lisa Sotto, partner and head of the Global Privacy and Data Security Practice at Hunton & Williams, was interviewed on July 18, 2012 about her participation in the USAID-funded Judicial Reform and Government Accountability Project’s initiative to educate and provide data protection awareness to the Serbian government. As we reported last week, Sotto was invited to Belgrade to assist Rodoljub Sabic, Serbia’s Commissioner for Information of Public Importance and Personal Data Protection, and the JRGA Project. Sotto, who also is Chair of the U.S. Department of Homeland Security’s Data Privacy and Integrity Advisory Committee, spent last week advising the Commission on steps to enhance Serbia’s data protection framework.