European Union: Jones Day Global Privacy & Cybersecurity Update | Vol. 22 (Europe)

EUROPE

European Council

Bulgarian Presidency Releases Revised Draft of Proposed ePrivacy Regulation

On February 15, the Bulgarian presidency published a revised draft of the proposed ePrivacy Regulation. The revisions cover issues such as the investigative and corrective powers for supervisory authorities, the role of the European Data Protection Board, and cooperation between relevant authorities.

European Court of Justice

Advocate General Releases Opinion on Consent to Cookies

On March 21, the Advocate General released an Opinion providing views on how to obtain valid consent to the use of cookies. The case, involving an online lottery service, is examining whether data subjects provided valid consent to online cookies when invited to unselect a pre-checked checkbox (i.e., opt-out) if they do not wish to consent to cookies. According to the Advocate General, consent is not considered valid under the GDPR and the ePrivacy Directive in this circumstance. Instead, the Advocate General stated that consent for participating in a lottery and consent for the use of cookies should be separately presented to data subjects, and the Advocate General addressed what information must be provided to users regarding cookies.

European Parliament

European Parliament Adopts the EU Cybersecurity Act

On March 12, the European Parliament adopted the EU Cybersecurity Act. The Cybersecurity Act strengthened the role of the European Union Agency for Cybersecurity ("ENISA") and established an EU-wide cybersecurity certification scheme to ensure that certified products, processes, and services sold in EU countries meet cybersecurity standards. The Council of the European Union must formally approve the Act.

European Commission

European Commission Adopts Recommendation on European Electronic Health Record Exchange Format

On February 6, the European Commission published a recommendation on the development of an exchange of electronic health records between health practitioners and hospitals across EU borders. The recommendation provides common technical specifications for the transfer of health data and states that a joint coordination process between the Commission, Member States, and stakeholders will facilitate further discussions on the format of the exchange.

European Commission Adopts Regulation on Ecodesign Requirements for Servers and Data Storage Products

On March 15, the EU Commission adopted a Regulation on Ecodesign requirements for servers and data storage products pursuant to Directive 2009/125/EC and amending Commission Regulation (EU) No. 617/2013. The Regulation establishes ecodesign requirements for placing online data storage products and servers on the market.

European Data Protection Board

EDPB Adopts Guidelines on Codes of Conduct and Monitoring Bodies

On February 12, the European Data Protection Board ("EDPB") published for public consultation Guidelines 1/2019 on Codes of Conduct and Monitoring Bodies. The guidelines aim to provide guidance and interpretative assistance in relation to the application of Articles 40 and 41 of the GDPR.

EDPB Issues Information Note on GDPR Data Transfers if No-Deal Brexit

On February 12, the EDPB issued an Information Note on data transfers under the GDPR in the event of a no-deal Brexit. The Information Note lists the data transfer instruments available to parties in the absence of an adequacy decision and states that, according to the UK government, "the current practice, which permits personal data to flow freely from the UK to the EEA, will continue in the event of a no-deal Brexit."

EDPB Provides Information Note Regarding Binding Corporate Rules

On February 12, the EDPB issued an Information Note on Binding Corporate Rules ("BCRs") for companies that use the United Kingdom's ICO as a BCR Lead Supervisory Authority. The Information Note invites companies to consider different recommendations regarding the identification of a new BCR Lead Supervisory Authority in another EU Member State. The EDPB also refers to the Working Document on the approval procedure for Binding Corporate Rules under the GDPR, which sets forth the criteria to identify a new BCR Lead Supervisory Authority.

EDPB Issues Statement on U.S. FATCA

On February 25, the EDPB issued Statement 01/2019 on the U.S. Foreign Account Tax Compliance Act ("FATCA") regarding the adverse effects of FATCA on EU citizens. The EDPB stated that it will scrutinize the existing data protection safeguards under the legislation authorizing the transfer of personal data to the U.S. Internal Revenue Service.

EDPB Issues Findings on GDPR Implementation, Cooperation, and Consistency

On February 26, the EDPB issued an overview of the implementation of the GDPR and the roles and means of the national supervisory authorities. The overview provides key statistics relating to GDPR cooperation and consistency mechanisms. Furthermore, the overview describes GDPR enforcement at a national level and finds that "the number of one-stop-shop procedures are increasing steadily" due to greater cooperation among supervisory authorities.

EDPB Releases Opinion on ePrivacy Directive and GDPR Interplay

On March 12, the EDPB adopted an opinion on the interplay between the ePrivacy Directive and the GDPR, which provides guidance on the processing activities within the material scope of the GDPR and the ePrivacy Directive, the responsibilities and powers of data protection authorities ("DPAs") under the GDPR, and the applicability of GDPR cooperation and consistency mechanisms. According to the EDPB's opinion, DPAs are competent to enforce the GDPR, even if a subset of the processing falls within the scope of the ePrivacy Directive.

EDPB Calls on EU Legislators to Accelerate Process for Adoption of ePrivacy Regulation

On March 13, the EDPB issued a statement inviting EU legislators to "intensify efforts towards the adoption of an ePrivacy Regulation." The EDPB recommends that the ePrivacy Regulation should set the same level of protection offered by the current ePrivacy Directive 2002/58/EC. In addition, the EDPB underlined that the ePrivacy Regulation must "complement the GDPR by providing additional strong guarantees for all types of electronic communications."

EDPB Issues Statement on Use of Personal Data in Political Campaigns

On March 13, the EDPB issued a statement concerning the use of personal data in the course of political campaigns. The EDPB cited key points that political parties should respect when processing personal data in the course of electoral activities. The EDPB also declared that, to this end, data protection authorities "will make full use of their powers," as provided by the GDPR.

European Data Protection Supervisor

EDPS Announces Potential Guidelines for Assessing Proportionality

On February 25, the European Data Protection Supervisor ("EDPS") announced its intention to issue guidelines for assessing the proportionality of measures that limit the fundamental rights to privacy and the protection of personal data. The guidelines complement the EDPS Necessity Toolkit and seek to assist EU institutions with ensuring that any limitation of the fundamental right to the protection of personal data is compliant with the requirements of EU primary law.

EDPS Releases 2018 Annual Report

On February 26, the EDPS released the 2018 Annual Report, which provides insights into 2018 EDPS activities. Of note, the Annual Report highlights EDPS's efforts to prepare for the GDPR, which became fully applicable across the European Union on May 25, 2018.

European Union Agency for Network and Information Security

ENISA Publishes Study on Cybersecurity Policy Development

On March 14, ENISA published a study regarding cybersecurity policy developments with respect to autonomous agents. The study highlights a number of relevant security and privacy considerations, such as unauthorized autonomous systems, hijacking and misuse, transparency and accountability, pervasiveness, and retention and opacity of processing.

ENISA Issues Guidance and Gaps Analysis for European Standardization

On March 15, ENISA published its guidance and gaps analysis for European standardization, which explores how the standards-developing ecosystem is responding to the privacy changes. The guidance also provides insights into "state-of-the-art" privacy standards in the information security context through a relevant gap analysis.

BELGIUM

Private Entities Launch Action Against Exemption of Fines for Public Authorities

On March 12, the Federation of Enterprises in Belgium launched an action before the Constitutional Court to annul a provision of the Belgian privacy law of July 30, 2018, implementing the GDPR. The challenged provision provides for an exemption of fines for public authorities.

Belgian Data Protection Authority Publishes Categories of Processing Subject to Impact Assessment

On March 22, the Belgian Data Protection Authority published in the official Journal the decision of its general secretariat, which lists the categories of processing that must be subject to a data protection impact assessment under Article 35 of the GDPR (source document in French and Dutch). The list went into effect on April 1.

FRANCE

French National Cybersecurity Agency Participates in New EU Cybersecurity Competence Network called "SPARTA"

On February 18, the SPARTA consortium was launched with the support of the European Research and Innovation Framework Program. The French National Cybersecurity Agency will collaborate with SPARTA for three years. SPARTA's objective will be to "develop and implement top-tier cybersecurity research" in order to strengthen the strategic autonomy of the European Union.

CNIL Closes Proceedings Initiated Against Five Insurance Companies

On February 19, the French Data Protection Authority ("CNIL") issued decisions closing proceedings initiated last October against five insurance companies for alleged misused personal data (source document in French). After the implementation of several changes to the information systems by the challenged entities, CNIL stated that the companies had complied with formal notices and closed the proceedings.

CNIL and CADA Clarify Guidelines for Open Data

On February 21, the CNIL and the French Commission for Access to Administrative Documents ("CADA") launched a public consultation on the first part of their "practical guide" on the online publication and reuse of open data. The guide, intended for both administrations and citizens, seeks to clarify the legal framework of open data, and the observations collected will be used to amend the guide.

CNIL Closes Proceedings Against Digital Advertiser

On February 25, the CNIL closed proceedings initiated against a company in the digital advertising sector for processing personal data without legal basis (source document in French). The CNIL stated that the company complied with the formal notice issued last November by implementing a new pop-up window to obtain the consent of users and allowing the user to express his/her consent through an on/off widget for each data processing purpose, among other changes.

CNIL Releases Report on Data Processor Accountability

On March 5, the CNIL published its report on data processor accountability (source document in French). According to CNIL, surveys revealed that although data processors have become aware of the changes in light of the GDPR, there is needed improvement regarding the preparation of incident management processes and impact assessments.

GERMANY

Regional Labor Court Publishes Decision on Access to Investigation Data

In March, the regional labor court of Baden-Württemberg published a decision holding that a data subject's rights to access and receive a copy of personal data pursuant to the GDPR may include personal data relating to internal employee investigations. The court held that the defendant's invocation of the whistleblower protection was insufficient due its inability to offer specific facts supporting the protection.

DSK Issues Guidance on Data Transfers in Event of Brexit

On March 8, the Datenschutzkonferenz ("DSK"), which is the consensus body of the German Data Protection Authorities, published a resolution regarding the necessary steps for transferring data from Germany to the United Kingdom and Northern Ireland in the event of Brexit (source document in German). The resolution explained that in the event of a "Deal-Brexit," the current "deal-draft" would foresee the continued applicability of the GDPR, at least until the end of 2020, and set forth next steps in the event of a "No-Deal Brexit."

Administrative Court Rules on GPS Tracking in Employment Context

On March 19, the administrative court in Lueneburg ruled that, in the employment context, GPS tracking of company vehicles must be "necessary" and that employers must properly obtain valid and informed consent (source document in German). The court relied on GDPR Article 88 and Germany's Federal Data Protection Act in reaching its decision.

ITALY

DPA Issues Decision on Wearable Devices in Workplace

On February 28, the Italian Data Protection Authority ("DPA") issued a decision clarifying a company's obligations with respect to using wearable GPS devices to monitor its employees (source document in Italian). The DPA required the company to identify specific measures aimed at ensuring the protection of its employees' dignity, retain employee data only for periods of time strictly necessary for its stated purpose, and detail the cases in which it would be necessary to access personal data.

DPA Issues Clarifications on Processing of Health Data

On March 7, the Italian DPA released clarifications on health data processing in light of GDPR principles (source document in Italian). Among other clarifications, the Italian DPA maintained that doctors are allowed to process the personal data of their patients for medical purposes without consent, provided patients have information about processing activities, and that all health-related business operators are required to maintain detailed data processing records for all processing activities carried out in connection with patients' data.

THE NETHERLANDS

DDPA Investigates Use of Personal Data in Election Campaigns

On February 15, the Dutch Data Protection Agency ("DDPA") announced its request to political parties for information on how they process personal data during election campaigns, with a focus on third-party service providers that use micro-targeting marketing methods. The DDPA also asked administrators in charge of managing tools that help voters test their political preferences to pay close attention to requirements for processing personal data.

DDPA Disallows "Cookie Walls"

On March 7, the DDPA published its opinion on the use of "cookie walls," which is the practice by which websites condition access upon a visitor's agreement to allow tracking cookies. According to the DDPA, the use of cookie walls does not comply with the GDPR's requirement that visitors freely provide their consent.

DDPA Amends Policy on Administrative Fines

On March 14, the DDPA published guidelines amending its policy for calculating administrative fines for GDPR and other privacy-related violations (source document in Dutch). The policy sets outs the DDPA's approach to GDPR infringements, which involves assigning each provision to a specific penalty category. Of note, the DDPA retains its ability to impose fines outside the set bandwidth, and the new fine policy will be used until European guidelines for calculating fines have been accepted.

Alcohol and Drug Testing During Work Hours Allowed Only with Statutory Basis

On March 15, the DDPA announced that employers are allowed to test their employees for alcohol or drug use only if there is a specific statutory basis, such as those provided in the Dutch Aviation Act (source document in Dutch). The DDPA stated that the results of these tests qualify as sensitive personal data, which, under the GDPR, organizations do not have the right to process unless there is a statutory exception. The DDPA also stated that the relevant statutory basis for the alcohol and drug testing should contain sufficient safeguards to minimize the privacy impact.

SPAIN

SDPA Publishes Study on Effect of Fingerprinting on Citizen Privacy

On February 7, the Spanish Data Protection Agency ("SDPA") published its Survey on Device Fingerprinting, which examines the use of fingerprint identification and its impact on user privacy. The survey offers recommendations to users for minimizing potential privacy impacts and provides advice to manufacturers and developers of the technology.

SDPA Allows Communications with Customers Through WhatsApp

In March 2019, the SDPA published a resolution in a proceeding involving a data subject's claim that a mobile phone provider violated the GDPR (source document in Spanish). The data subject claimed that the company used WhatsApp to contact him about a home installation in violation of the GDPR. The SDPA dismissed the proceedings, finding that the company's actions were lawful under the GDPR as they were necessary for the execution of a contract with the data subject.

SDPA Publishes Circular on Processing of Personal Data by Political Parties

On March 11, the SDPA published its Circular examining the use of political opinion data and electronic messaging systems by political parties, federations, and coalitions (source document in Spanish). The Circular maintains that only personal data that has been "freely expressed" may be used in election campaigns and that political parties can obtain data from public sources, such as the web, but not from private messaging groups. The Circular also prohibits political parties from inferring political ideology through the use of AI techniques or big data.

UNITED KINGDOM

UK Government Plans to Recognize Existing EU Data Transfer Methods

On April 11, the UK government indicated that it will use its authority under the EU (Withdrawal) Act 2018 to implement measures to allow transfers of personal data from the United Kingdom to the European Union to continue. To that end, the government stated its intent to pass regulations to transitionally recognize: (i) all European Economic Area countries as "adequate" for the purpose of transfers of personal data from the United Kingdom, to preserve the effect of existing EU adequacy decisions; (ii) the EU standard contractual clauses; and (iii) existing binding corporate rules.

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