Worldwide: Privacy & Cybersecurity Update Issue 3 | October 2014 - Europe, Middle East, And Africa

European Union

European Commission Designates Three New Members

The European Commission designated three new members of particular relevance to privacy and data security.

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European Commission Promulgates Technical Standards to Make RFID Use Data Protection Compliant

The European Commission made available two new EU technical standards to help users of radio frequency identification ("RFID") tags comply with the requirements under the Data Protection Directive (95/46/EC). RFID tags are used to automatically identify and track objects by wirelessly exchanging electronically stored information with so-called readers. The illicit tracking of RFID tags poses a risk to personal location privacy as exact movement profiles can be generated. The first of the new standards provides for a checklist for retailers and other entities that supply goods with RFID tags, detailing how they should manage their use (EN 16571:2014). The second new standard is aimed at informing consumers that a product includes an RFID tag by attaching an EU-wide logo to the product (EN 16656:2014). The new standards are to be implemented by the EU member states at the national level by January 31, 2015, by publication of an identical national standard or by endorsement.

Article 29 Working Party

Article 29 Working Party Publishes Questions for Search Engines on Right to be Forgotten

The Article 29 Working Party (an independent advisory body composed of European data privacy authorities) met on July 24 with representatives of leading U.S.-based search engines to discuss the practical implementation of the ruling of the European Court of Justice regarding the right to be forgotten (case C-131/12, Costeja). The Article 29 Working Party also published a list of questions addressed to the search engines. The aim of the Article 29 Working Party's initiative is to publish guidelines, which are expected to be finalized in November.

Article 29 Working Party Releases Statement on Invalidation of Data Retention Directive

The Article 29 Working Party adopted a statement on the April 8 ruling of the European Court of Justice that invalidated the Data Retention Directive 2006/24/EC. The Working Party welcomed the ECJ decision, which was based on the fact that the data retention principles set forth by the Directive (i) entailed substantial interference with the fundamental rights to privacy and data protection, (ii) failed to limit such interference with what is necessary for the purpose of fighting "serious crime," and (iii) failed to define the guarantees applicable in connection with the data retention principles of the Directive. The Working Party pointed out that even though the national measures implementing the Directive are not directly affected by the invalidation of the Directive, member states should ensure that their national framework relating to data retention is in line with the grounds of the ECJ decision. In particular: (i) the national legal data retention obligations should be differentiated depending on the types of data, (ii) access by national authorities should be limited to what is necessary and subject to substantive and procedural conditions, and (iii) the data storage conditions imposed by law should ensure effective protection against unlawful access. Failure of national data retention regulations to comply with such principles may result in such regulations being challenged before national courts.

Article 29 Data Protection Working Party on Big Data

The Article 29 Working Party commented in a letter to the White House on the U.S. report titled "Big Data: Seizing Opportunities, Preserving Values." The Working Party welcomed the approach outlined in the report to extend the existing privacy protection in the United States to non-U.S. persons and to support greater interoperability of privacy standards at the international level. The Working Party stated in particular that "it has no reason to believe that the EU data protection principles, as they are enshrined in Directive 95/46/EC, are fundamentally challenged by the development of big data." In this context the Working Party emphasized the importance of observing its various policy documents on the issue, setting out standards that might prove to be challenging for big data applications (e.g., Opinion 05/2014 on Anonymisation Techniques, Opinion 01/2014 on the Application of necessity and proportionality concepts and data protection within the law enforcement sector, Opinion 03/2013 on purpose limitation, Opinion 06/2013 on open data and public sector information re-use, and Opinion 06/2014 on legitimate interest).

European Data Protection Supervisor

European Data Protection Supervisor Publishes Position Paper on Transfer of Personal Data to Third Countries

The European Data Protection Supervisor ("EDPS") published a July 14 paper titled "The Transfer of Personal Data to Third Countries and International Organisations by EU Institutions and Bodies." The paper provided guidance to EU institutions and bodies on interpreting and applying the rules set out in Regulation 45/2001 in the context of international transfers of personal data.

European Data Protection Supervisor Workshop on Privacy, Consumers, Competition, and Big Data

On June 2, the EDPS held a workshop on the policy implications of the rapidly expanding digital market for the fields of data protection, competition, and consumer protection. Its report highlights the challenges that big data poses to competition reviews and concludes, among other things, that privacy will need to be a consideration in competition matters in the future.

European Conference of Data Protection Authorities

European Conference of Data Protection Authorities Adopts Resolution Supporting Revision of Convention 108 of Council of Europe

On June 5, the European Conference of Data Protection Authorities adopted a resolution supporting the Council of Europe's efforts to modernize the European Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (Convention 108). The resolution asked to preserve and, where possible, increase the current level of protection afforded by the Convention (e.g., by introducing an obligation to give notice of data security breaches).

France

French DPA Sanctions Telecoms Operator for Data Security Breach

In April, a major French telecoms operator notified CNIL, the French data protection authority ("DPA"), of a major personal data breach in connection with an email campaign and noted that the breach resulted from a technical failure of one of the operator's service providers. The CNIL investigated the case and, in an August 7 decision (source document in French), concluded that, even though the technical issue had been resolved, the telecoms operator had not complied with its obligation to implement all useful means to ensure the security of the personal data that is processed. The CNIL particularly pointed out that the operator (i) should have carried out a prior security audit of its service provider before entrusting the service provider with the email campaign; and (ii) had breached its security obligations by communicating personal data files to its service providers without securing the communications and by failing to include in its agreements with the data processors the necessary data security and confidentiality clauses required by law.

Germany

Germany Heads Toward Legislative Approach to IT Security

Despite the EU Cybersecurity Directive currently under discussion, the German Ministry of the Interior presented a draft bill (source document in German) that focuses on IT security standards for companies operating critical infrastructure—namely, those in telecommunications, energy, transport, nutrition, banking, insurance, etc.

Bavarian DPA Rules Dashcams Illegal

The Bavarian DPA enjoined the use of a dashcam. Its decision recently was affirmed by a judgment of the court of Ansbach (source document in German). According to the decision, a dashcam user processes personal data and is therefore subject to the Federal German Data Protection Act. Furthermore, the law prohibits such processing, because fundamental rights and the right of informational self-determination prevail over the need for evidence in the event of a car accident. Following the judgment of the Ansbach court, a Munich court held (source document in German) in a civil proceeding that dashcam material cannot be used as evidence because it was unlawfully obtained.

Ireland

Ireland DPC Wins Fines Against Company Directors Under Data Protection Acts

Ireland's Data Protection Commissioner ("DPC") announced that it had secured fines against the directors of a private investigation company for violating the Data Protection Acts, 1988 and 2003. The prosecutions marked several "firsts" for the office: its first prosecution against private investigators, its first prosecution of a company's directors for their role in data protection offenses, and its first prosecution for knowingly or recklessly obtaining or disclosing personal data or information without the consent of the data controller.

Italy

Italian DPA Issues Data Processing Measures for Adoption by Google

In a July 10 decision, the DPA provided specific measures that Google must take to make the processing of personal data under its new privacy policy fully compliant with Italian privacy law. In particular, Google must, among other things, obtain the prior consent of its users in Italy in order to properly use their personal data for profiling and behavioral advertising activities and must define the retention period of the processed data.

The Netherlands

Dutch National Centre Investigates Reported Theft of 1.2 Billion Email Address and Password Combinations

Following media reports concerning the theft of 1.2 billion email address and password combinations by a Russian criminal organization, the Dutch National Centre for Cyber Security ("NCSC") investigated and shared available information with the central government as well as other relevant organizations. The NCSC confirmed that it closely monitors new developments (source document in Dutch) and contacted Holden Security, the American company that purports to have information concerning the stolen information, as well as various international partners, in order to learn more about the stolen data. The NCSC has pointed to guidance such as "10 Tips for Safe Internet Use" (source document in Dutch) and "Help! My Data Leaked On The Internet" (source document in Dutch) in order to prevent theft and misuse of personal data on the Internet.

Dutch Secretary of Security and Justice Addresses Social Media Use Experiments

Media reported in June that Facebook experimented in 2012 with certain users by manipulating the information posted on its site, finding that it could make people feel more positive or negative through a process of "emotional contagion." In light of those reports, the Ministry of Security and Justice was asked (source document in Dutch) to respond to several questions on the privacy of social media users. In response, the secretary stated that whether social media services should request explicit consent of the user for such experimentation depends on the arrangement between the user and the social media provider. According to the secretary, under Articles 33 and 34 of the Personal Data Protection Act, search engine and social media service providers are obligated to inform users regarding the purpose of the processing of personal data, and if the conditions of use are sufficiently clear, specific user approval is not required.

Dutch DPA Intends to Declare Notification of the Employers' Association "ZorgZijn Werkt" Warnings Register Lawful
The Employers' Association provided notice of its intent to establish a warning database to register unjust and criminal acts by caretakers against clients. The Association, having no license based on the Private Security Organizations and Detective Agencies Act, will necessarily process criminal information and/or information about unlawful or objectionable behavior for the benefit of third parties. The DPA concluded (source document in Dutch) that it intends to declare the notification lawful.

Russia

Russia May Rush Deadline for Data Localization: Parliament Proposes Deadline of January 1, 2015
In July, President Putin signed into law a number of restrictive amendments (source document in Russian) to Russia's existing data security laws, now known as the Federal Law "On Amendments to Certain Legislative Acts of the Russian Federation for Clarification of the Procedure of Personal Data Processing in Information and Telecommunication Networks." The law requires that any databases used for gathering, storage, and processing of data relating to Russian citizens be located in Russia. Although these amendments are scheduled to become effective in September 2016, the lower chamber of the Russian Parliament is now considering a bill (original source document in Russian) amending this new law to bring the effective date forward to January 1, 2015. It is not yet clear if the new deadline will be put forward or postponed.

United Kingdom

New UK Offense to Apply to Serious Cyberattacks

The UK government has proposed new measures in the Serious Crime Bill to punish serious cyberattacks. The new law would introduce a new offense committed if a person carries out an unauthorized act in relation to a computer that causes or creates a significant risk of serious damage to human welfare, the economy, the environment, or national security in any country. The offense would be punishable by up to 14 years' imprisonment and/or a fine, or life imprisonment where the act caused death, illness, injury, or serious damage to national security.

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Authors
Laurent De Muyter
Sergei Volfson
Undine von Diemar
Olaf Hohlefelder
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