Worldwide: The EU-US Privacy Shield's Impact On Online Advertising

1. For marketers doing business on an international level a constant cross-border data flow is crucial and - to be capable of successfully applying their practices - they are frequently in need to transfer data from one country to another in an easy and timely way.

In the past US based companies could rely – to address these needs – on the 'Safe Harbor' system, an agreement between the European Commission and the FCC, in force since 2000, governing the transfer of EU citizen's data to the US and granting that in the context of such transfer both, individuals' rights as well as safety measures to protect data, would enjoy standards equal to those set by the EU privacy regulations.1

2. On October 6, 2015, the Court of Justice of the European Union had to deal with the Safe Harbor agreement2 and came to the conclusion that the European Commission's Safe Harbor Decision, preventing the national DPAs from assessing – when called into action by an individual - whether said decision was actually granting sufficient protection to an individual's privacy and fundamental rights, resulted illegal as the Commission lacked of the competence to interfere with the national DPA's powers in such an intrusive way.

3. Given the enormous impact on business performed internationally, the European Commission and US Authorities rushed to come up with a new solution, allowing the data transfer to continue. To the purpose, the EU-US Privacy Shield was born - on July 12, 2016 - as "a robust new system to protect the personal data of Europeans and ensure legal certainty for businesses"3 to substitute the former 'Safe Habor' agreement4.

The new agreement provides US companies with a 'self-certification' system, adherence to which is to be notified to the Department of Commerce and implies compliance with a number of key principles, to be taken into account by marketers' promotional strategies, any time they act as data 'controllers' or 'processors' and are involved in data transfer from the EU to the US. The Shield constitutes a rather complex document. Therefore, only the key principles to consider will be mentioned in the following.

4. Once a US company has adhered to the Shield5, it will have to keep its own promises, will face regular reviews from the Department of Commerce6 as to actual compliance and will need to fulfill the following obligations (the Principles):

  • the Notice Principle requires to offer data subjects comprehensive information on aspects such as: type of data collected, purpose of processing, right of access and choice, conditions for onward transfers, liability,
  • the Data Integrity and Purpose Limitation Principle brestricts the collection of personal data to information relevant to the purpose of the processing as well as of the original collection and calls for data to result "reliable for its intended use, accurate, complete and current". The principle implies that "personal information may be retained in a form identifying or rendering an individual identifiable (and thus in the form of personal data) only for as long as it serves the purpose(s) for which it was initially collected or subsequently authorized",
  • the Choice Principle allows data subjects the right to object (opt out), when their data are used for a "new (changed) purpose .. materially different but still compatible with the original purpose",
  • under the Security Principle entities involved in data collection, storage. maintenance or dissemination must adopt "reasonable and appropriate" security measures with respect both, to the risks involved by the processing as well as by the nature of the data handled (when sub-processors are used, their compliance with the principles has to be sought through specific contractual obligations),
  • the Access Principle grants data subjects an almost unlimited right to achieve knowledge – "without need for justification and only against a non-excessive fee" – about whether an organization is processing personal data related to them and – if so – to have the data communicated within reasonable time,
  • the Recourse, Enforcement and Liability Principle requires to grant (compulsory) compliance with the Shield's key principles and to annually re-certify such compliance of privacy policies7. It also calls for an 'effective redress mechanism', capable of dealing timely with any complaints received with respect to data processing.
  • the Accountability for Onward Transfer Principle will result particularly relevant to marketers, as it sets that 'onward transfer' of collected data is allowed only when it: (i.) occurs for limited an specified purposes and consistent with data subject provided consent, (ii.) is performed on the basis of a contractual agreement (or of a comparable legal act), and when (iii.) such agreement offers a level of protection identical to that granted by the Principles (bearing in mind that the original controller, transferring the data, remains fully liable for the receiving organization's exact and full compliance with the principles)8.

5. These comments are to be intended as per now. Once the General Data Protection Regulation – GDPR9 will be in force and fully applicable, the Shield's requirements are necessarily to be put into context with the Regulation's provisions.

Footnotes

1 On the basis of such agreement the European Commission issued its decision no. 2000/520/EC of 26 July 2000 ("pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequacy of the protection provided by the safe harbour privacy principles").

2 The case – no. C-362/14 - was referred by the High Court of Ireland and originated from a lawsuit between Mr. Maximilian Schrems, an Austrian privacy activist, objecting to Facebook's practice to transfer users' personal information from its Irish subsidiary to servers located in the US. According to Mr. Schrems, after the press reports about the NSA's surveillance practices, the US could no longer be deemed as ensuring an adequate level of protection of the personal data transferred. 

3 Press Release IP/16/2461 of Ms. Věra Jourová, Commissioner for Justice, Consumers and Gender Equality European Commission.

4 The agreement basically results in a new 'adequacy' assessment with respect to the US granting EU privacy standards.

5 The list of companies registered the system will be administered and published by the Department of Commerce, in charge also of the updating the list.

6 The Department will also monitor any false claims of Privacy Shield participation or the improper use of the Shield certification mark, and DPAs can refer organizations for review to a dedicated contact point at the Department.

7 Adhering companies are to provide for adequate 'internal procedures', to offer their employees educational training on the implementation of the privacy policies in place and to either arrange for periodical compliance checks or to undergo an outside compliance review (inclusive auditing or random checks).

8 For details check Annex II, section III.

9 Regulation (EU) 2016/679 of 27 April 2016 "on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC" (General Data Protection Regulation), approved on May 24, 2016 and applicable on May 25, 2018.

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
Similar Articles
Relevancy Powered by MondaqAI
Lewis Brisbois Bisgaard & Smith LLP
Moritt, Hock & Hamroff LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Lewis Brisbois Bisgaard & Smith LLP
Moritt, Hock & Hamroff LLP
Related Articles
 
Related Video
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions