European Union: Data Privacy – 5 Recent Developments

To coincide with Data Privacy Day, we have prepared a roundup of five recent announcements and developments in the world of privacy and data protection. The focus of these is, somewhat unsurprisingly, centred on the General Data Protection Regulation ("GDPR"), updates to EU law on the privacy of electronic communications, and changes to mechanisms for the transfer of personal data outside the EEA. Also, as part of the preparation of the GDPR, next week we will be publishing our ' Guide to Getting Ready for the GPDR' so ensure to download a copy! 

1. EU Regulators begin issuing GDPR guidance

With the commencement of the GDPR now less than 18 months away, the collective body of EU data protection authorities' ("DPAs"), Article 29 Working Party ("WP29"), recently began issuing guidance on aspects of the GDPR. To date, WP29 has published guidelines regarding data portability, data protection officers ("DPOs") and the lead supervisory authority.

Some key points to note:

  • DPOs cannot fulfil duties outside the scope of data protection which would "result in a conflict of interest". Senior management positions which involve decision-making around how and why personal data is used will conflict with the role of the DPO.      
  • The right to data portability, a new right under the GDPR, allows data subjects to receive their personal data in a structured format and to transmit such data to another data controller. This right applies to data generated by the use of a service or device. According to WP29, the right can apply to search history, internet traffic data, location data, and attributes tracked by a fitness or health tracker.
  • In cases of cross-border processing, the lead regulator is determined from the location of the organisation's 'main establishment'. However, this may not be straightforward if a company's decisions regarding cross-border processing activities are made in different locations. This could result in different 'main establishments' for those activities and potentially subject the organisation to the jurisdiction of different lead authorities for different processing activities.

2. EU Regulators' action plan for 2017 

Following the release of the initial guidance documents, WP29 published its action plan for this coming year. In 2017, WP29 has committed to continuing its work on a number of topics relevant to the GDPR. These include:

  • certification
  • data processing likely to result in a high risk and data protection impact assessments ("DPIAs"); administrative fines 
  • the administration of the European Data Protection Board ("EDPB") and preparation of the consistency mechanism for cooperation between data protection authorities
  • the 'one-stop shop' mechanism

WP29 has also set a number of new priorities for 2017 and has committed to producing further guidelines covering a number of key concepts under the GDPR, including on consent, profiling and transparency. It has also committed to updating a number of existing Opinions, including opinions on data transfers to countries outside the EEA and on data breach notifications.

3. The EU proposes a new ePrivacy law

The European Commission has proposed a revised law to govern the privacy of electronic communications (the "Regulation"). If adopted, this proposal will replace the existing ePrivacy Directive, which regulates the use of communications data, cookies and similar technologies, location data and unsolicited direct marketing.

The Regulation is intended to complement the GDPR, by laying down rules on the protection of personal data processed in relation to electronic communications. So-called 'over the top' communications providers, which provide communication services over the internet but do not provide the underlying physical infrastructure, will be caught by the Regulation. This will bring a wide variety of email and personal messaging services within the Regulation. Other changes include: 

  • tightening the grounds upon which communications content and metadata may be processed
  • aligning the concept of consent with that under the GDPR
  • requiring, in certain instances, prior consultation with regulators
  • obliging providers of browser and communication software to offer a variety of privacy options

The European Parliament and Council are due to consider the draft text and we can expect to see revisions to the proposal. Given the significant impact the Regulation will have in the online sphere, and the need for a serious debate of the proposal, achieving the 25 May 2018 target date for implementation may be challenging.

4. Updated MCCs and Adequacy Decisions

Two of the core mechanisms that permit the transfer of personal data to countries outside the EEA are the European Commission adequacy decisions on certain third countries ("Adequacy Decisions") and the Standard Contractual Clauses ("SCCs"). Both the SCCs and the Adequacy Decisions have been subject to subtle amendments, published in December 2016. These changes, it appears, were made in the wake of the Schrems decision aimed at minimising the risk of their invalidation.

The amendment to the SCCs sought to remove certain perceived restrictions on DPAs' powers to suspend or prohibit transfers in specific cases. However, this does not affect the text of the SCCs, which remains unchanged. A similar change was made to the Adequacy Decisions, aiming to remove restrictions on DPAs' powers. The Adequacy Decisions now oblige the Commission to monitor the rules of each whitelisted jurisdiction to ensure that the scope of the Adequacy Decision remains valid.

In addition, the Commission recently announced the intention to explore further Adequacy Decisions, beginning with Japan and South Korea later this year.

5. Swiss Privacy Shield

Following the introduction of the EU-US Privacy Shield Framework last year, US and Swiss authorities recently announced agreement on a new cross-border data transfer mechanism, the Swiss-US Privacy Shield Framework (the "Swiss Privacy Shield"). Following the Schrems decision, the Swiss-US Safe Harbor Framework entered a period of limbo. Although the Swiss regulator expressed dissatisfaction with the framework, it was not formally invalidated and remained active.

Swiss Privacy Shield will replace the Swiss-US Safe Harbor Framework and will apply the same standards to the transfer of personal data to the US as are applied under the EU-US Privacy Shield.

The US Department of Commerce will start accepting self-certification applications for the Swiss Privacy Shield on 12 April 2017, and will no longer accept any US-Swiss Safe Harbor certifications.

New 'Getting Ready for the GDPR' Guide

Many businesses are beginning to prepare for the GDPR. While the GDPR builds on familiar concepts and rules, it also brings about many changes. To help prepare for these changes, we have launched our " Getting Ready for the GDPR" Guide. The Guide will serve as a helpful resource for those looking to get to grips with the GDPR in the coming months. Download the Guide here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.