Worldwide: The Basics Of International Privacy Law For Commercial Litigators, Part 1: The EU

Let's say an American commercial litigator is working to defend a multinational client that has been sued in the U.S. The litigator may realize that he or she needs to collect emails or other documents from the client's office in Germany, perhaps for discovery or investigation. However, the export of the data contained in those documents from Germany may, in certain circumstances, be illegal under German or EU privacy laws, and a lawyer unaware of the nature of these laws may find him- or herself in hot water.

Commercial litigators based in the U.S. often are surprised to learn that other countries' privacy laws can present hurdles in their own domestic cases. However, the mere awareness that different jurisdictions take different approaches to can go a long way toward easing the headaches inflicted by these varying (and often confusing) legal regimes. This post covers the basics of privacy law in the EU, and future posts in this series will delve further into the complexities of international privacy law and how it affects U.S.-based litigators.

Privacy Law in the EU

In contrast to the U.S., which takes a sectoral approach to privacy – laws like the Health Insurance Portability and Accountability Act (HIPAA) and the Gramm-Leach-Bliley Act set out privacy laws related to specific industries – the EU privacy regime is more comprehensive. For the past 20 years, privacy laws in the EU have been governed by the Data Protection Directive, generally referred to as the "Directive." The Directive set out the minimum legal standards the EU Member States, as well as non-EU European Economic Area members Norway, Iceland, and Liechtenstein, had to meet in crafting their own data protection laws relating to "personal data," defined in the Directive as "information relating to an identified or identifiable natural person." That definition is broad enough to include things like a person's name, address, financial account numbers, and even IP addresses. Although the Directive therefore allowed for some disparity in the laws among the Member States, it also imposed some stringent requirements that applied more generally across the continent.

One of the areas that has most affected American litigators is the Directive's prohibition on the export of personal data from the EU in the absence of certain legal measures. In essence, EU lawmakers determined that personal data could not leave the EU unless that data was going to a country with data protection laws that the EU deemed "adequate" compared with its own demanding regulations. The list of countries with "adequate" data protection regimes grew over time and currently includes Argentina, Canada, Israel, New Zealand, Switzerland, and Uruguay, but it has never included the U.S. Accordingly, those wishing to export personal data from an EU Member State to the U.S. had to adopt another measure in order to transfer the data legally. Three of the more commonly-used measures include:

  • Standard contractual clauses, also known as model contracts, which oblige the data importer to take certain measures to protect the personal data being transferred from the EU;
  • Binding corporate rules ("BCRs"), through which a multinational company may adopt EU-approved rules relating to its treatment and handling of personal data;
  • Self-certifying under the U.S.-EU Safe Harbor Agreement, which represented a U.S. company's pledge to adopt EU-like standards in its treatment and handling of personal data. Of these three options, Safe Harbor self-certification proved to be particularly popular, as the self-certification process was relatively painless.

In late 2015, the European Court of Justice ("CJEU") further compounded the data transfer headache when it invalidated the decision setting out the Safe Harbor program, which in turn rendered the program itself extinct. The CJEU felt that the revelations as to the U.S. government's widespread surveillance (most notably publicized by Edward Snowden) indicated that the U.S. government did not adequately protect personal data from NSA surveillance activities. The decision had a profound effect on trans-Atlantic personal data transfers, as many companies that had self-certified under the Safe Harbor program scrambled to implement model contracts or BCRs in an attempt to legalize their EU-to-U.S. transfers. In February 2016, U.S. and EU officials reached agreement on a new version of Safe Harbor, known as the Privacy Shield. Although some Privacy Shield details have been released, it still requires approval, and even then, it likely will be subject to legal challenges that may prevent it from serving as a viable means of transfer for some time.

Making matters even more complicated is the fact that the EU is in the process of adopting the General Data Protection Regulation ("GDPR"), which is meant to replace the Directive as the omnibus EU data protection law. The GDPR still requires the adoption of model contracts, BCRs, or other legal means to legitimize the export of personal data outside the EU, while increasing the fines for violations of data protection laws and imposing other restrictions. The GDPR likely will not go into effect until the spring of 2018, although companies and their counsel should analyze the GDPR now to ensure compliance within two years.

So why do the U.S. and this bloc of European countries – which, by and large, share numerous fundamental cultural similarities – take such different approaches to privacy? One theory takes into account the regions' differing historical backgrounds. The U.S. has a strong tradition of free speech and expression, which is enshrined in the First Amendment of the Constitution and supports the belief that information (including, according to this theory, personal information) should be shared with few restrictions. The European perspective may be shaped more by World War II, when fascist governments kept lists of people's personal information and used that information to send certain individuals to work or death camps. According to this theory, Europeans therefore are more wary about their privacy and the security of their personal information, and this sentiment is reflected in the EU's more stringent and comprehensive privacy laws.

Implications for Litigators

Litigators should be aware that the U.S. privacy law regime (with which they likely have some degree of familiarity) is an outlier compared to the rest of the world, and that laws in the EU, in particular, may hinder discovery and investigations, particularly those relating to international clients.

Please check back for future posts in this series, which will cover privacy laws in other international jurisdictions, as well as discovery issues arising from international privacy.

The Basics Of International Privacy Law For Commercial Litigators, Part 1: The EU

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

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

In association with
Related Video
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (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

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’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.


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.


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 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.


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.


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.


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.


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

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

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

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