Privacy Principle | Safe Harbor | Privacy Shield |
Notice
Requirements The Privacy Shield notice requirements are more specific and detailed than what was required by the Safe Harbor regime. Safe Harbor required a privacy policy to provide information on data processing activities and address conformity with the Safe Harbor's privacy principles, but the Privacy Shield imposes a number of specific new additions. |
An organization must
provide information about the following in its privacy policy:
|
Similar to the prior
regime, an organization must provide information about the
following in its privacy policy:
|
Choice
Requirements The Privacy Shield does not change the Safe Harbor's choice principle. |
Organizations must offer an opt-out where personal data is (1) disclosed to non-agent third parties or (2) used for a materially different purpose than that for which it was originally collected or subsequently authorized by the individual. An opt-in must be provided for sensitive data. | Organizations must offer an opt-out where personal data is (1) disclosed to non-agent third parties or (2) used for a materially different purpose than that for which it was originally collected or subsequently authorized by the individual. An opt-in must be provided for sensitive data. |
Onward
Transfers/Vendor Agreements The Privacy Shield imposes new requirements (and liability for) onward transfers of data to third parties. |
Third Parties acting
as Data Controllers: The Safe Harbor's notice and choice principles apply, requiring an opt-in or opt-out depending upon the use or type of data. Third Parties acting as Agents/Vendors "to perform task(s) on behalf of and under the instructions" of an organization: Organizations must either (1) ascertain that the third-party agent is a Safe Harbor member or subject to an EU adequacy finding, or (2) enter into a contract requiring the agent to provide "at least the same level of privacy protection" as the Safe Harbor framework. If an organization complies with this, it will not be held liable if a third party processes information "in a way contrary to any restrictions or representations." |
Third Parties acting
as Data Controllers: The Privacy Shield's notice and
choice principles apply, requiring an opt-in or opt-out depending
upon the use or type of data. Organizations must also contract with
such third parties, obligating the third-party data controller to:
|
Security The Privacy Shield does not change the Safe Harbor's security principle. |
Organizations must implement "reasonable and appropriate" security measures, taking into account the risks involved in the processing and the nature of the personal data. | Organizations must implement "reasonable and appropriate" security measures, taking into account the risks involved in the processing and the nature of the personal data. |
Data
Integrity/Purpose Limitation The Privacy Shield maintains the Safe Harbor's data integrity principle, but includes more detail on compatible purposes and includes new language on data retention and obligations to protect |
Personal data "must be relevant for the purposes for which it is to be used," and organizations may not process information in ways "incompatible with the purpose for which it has been collected or subsequently authorized." Organizations must take "reasonable steps" to ensure that data is reliable for its intended use, accurate, complete, and current. | Purpose
Limitation: Collection of personal data must be
"limited" to that which is "relevant for the
purposes of processing," and organizations may not process
information in ways "incompatible with the purpose for which
it has been collected or subsequently authorized by the
individual."
Ongoing Obligations: The new framework explicitly states that, even if an organization terminates its certification in Privacy Shield, the organization remains bound by the Privacy Shield principles with respect to any personal data it retains that was collected under the Privacy Shield. Organizations must continue to affirm their commitment to apply the principles to any retained data. Data Integrity: Organizations must take reasonable steps to ensure that data is reliable for its intended use, accurate, complete, and current. |
Access,
Correction, and Deletion Rights The Privacy Shield maintains the Safe Harbor's access principle, including the rights to amend, correct, or delete inaccurate data. The Privacy Shield augments these rights, enabling data subjects to correct, amend, or delete even accurate personal data where such information is processed in violation of the Privacy Shield principles. |
Individuals must have access to personal data that the organization has about them, and be allowed to correct, amend, or delete inaccurate personal data held by an organization, except where the burden or expense of providing access would be disproportionate to the risks to the individual's privacy in the case in question, or where the rights of other persons would be violated. No justification is required, and companies may not charge excessive fees for such access. | Individuals must have access to personal data that the organization has about them, and be allowed to correct, amend, or delete inaccurate personal data held by an organization, except where the burden or expense of providing access would be disproportionate to the risks to the individual's privacy in the case in question, or where the rights of other persons would be violated. Specific grounds for rejecting access are explored in the Supplemental Principles. No justification is required, and companies may not charge excessive fees for such access. The Privacy Shield also makes clear that amendment, correction, and deletion rights must be provided in circumstances where accurate personal data has been processed in violation of the framework. |
Recourse,
Enforcement and Liability The Privacy Shield creates far stronger enforcement obligations and establishes new recourse mechanisms. |
|
Before self-certifying,
companies must implement processes for handling complaints from EU
data subjects, including a point of contact for complaints, and
must ensure that an independent recourse mechanism is in
place. More specifically:
|
Additional Obligations |
|
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.