Following the CJEU’s invalidation of the EU Commission’s adequacy decision on the EU-U.S. Privacy Shield in Schrems 2.0, on September 8, 2020, the Federal Data Protection and Information Commissioner (FDPIC) found that the Swiss-U.S. Privacy Shield does not meet the data protection standards set by the country’s Federal Act on Data Protection (FADP). READ MORE
James helps clients respond to cyberattacks, data breaches, and action by data protection regulators.
James has led the response to significant enforcement investigations by international and domestic regulators, including the UK’s Information Commissioner’s Office, law enforcement agencies and Parliamentary Select Committees. He also has experience in conducting internal investigations on behalf of international corporations.
With extensive litigation experience, James also defends his clients when data privacy issues lead to civil litigation.
Posts by: James Lloyd
In one of the world’s first test cases regarding the legality of the use of automated facial recognition and biometric technology, on 11 August 2020 the English Court of Appeal handed down judgment in R (Bridges) v CC South Wales. The court found that the use of this technology by the South Wales Police Force violated privacy, equality and data protection laws. READ MORE
Today’s decision by the Supreme Court to allow the appeal in WM Morrison Supermarkets plc v Various Claimants may on first glance look like a significant setback to privacy advocates. However, the court’s unanimous judgment should be viewed with some relief by those arguing for greater privacy protections. Whilst the Supreme Court ruled that, on the facts, WM Morrisons Supermarkets plc (“Morrisons”) could not be held liable for the actions of its rogue former employee, the court said that, had it been necessary to decide the question, it would have held that the statutory data protection regime did not exclude the imposition of vicarious liability on employers. Furthermore, the decision also provides no protection to companies who have been held to be at fault for a data breach, since data subjects will have a direct right of action against the company in those cases and will not be relying on establishing vicarious liability. READ MORE
We expect national and international privacy regulators to take a pragmatic and reasonable approach to helping organisations navigate data protection compliance during the current COVID-19 crisis. This week, both the European Data Protection Supervisor (the “EDPS”) and the UK’s Information Commissioner’s Office (the “ICO”) have shown that expected pragmatism. READ MORE
Over the past few days, commentators and, in some cases, government ministers have stated that the GDPR (and by association the Data Protection Act 2018) are preventing some organisations from providing a comprehensive response to the COVID-19 crisis. READ MORE
The decision to appeal a regulatory finding is never taken lightly. By the time a regulator has completed its investigation and notified a company of its intention to fine, the company will have invested significant time and money in responding to the regulatory investigation. As such, there is a real temptation to accept the fine and the accompanying statement from the regulator and move on.
However, in the case of recent regulatory findings, fines and intentions to fine issued by the UK’s Information Commissioner’s Office (the “ICO”) against British Airways, Marriott and Dixons Carphone, all three companies have appealed or indicated an intention to appeal despite the significant difference in the levels of the fines/intentions to fine. In our view, this is related to the spectre of an emerging class action litigation culture in the UK that increases the stakes for any company facing negative regulatory findings.
In this UK-focused blog we explore the potential motivation behind these decisions to appeal, why we expect to see more companies taking this approach in the future, and the steps to be taken in order to appeal decisions by the ICO and we also consider whether the companies that have failed to appeal and are now facing class actions made the right decision when they elected not to appeal.