Data Breach

International Transfers at Risk – The EDPB’s Guidelines on International Transfers Post-Schrems II

On November 11, 2020, the European Data Protection Board (EDPB) published its long-awaited guidance on what parties to international data transfers should be doing to perform such transfers in a manner compliant with the Regulation (EU) 2016/679 (the General Data Protection Regulation or GDPR) in light of the European Court of Justice’s (CJEU) decision in Case C-311/18 Data Protection Commissioner v Facebook Ireland and Maximillian Schrems (Schrems II).

Unfortunately, the draft guidelines provide no panacea for companies engaged in international data transfers of personal data from the EEA to third countries. Instead, organizations face 55 pages of guidance that provide few workable solutions for international data transferors—apart from a lengthy protocol for conducting risk assessments. READ MORE

Brazil’s LGPD Poised to Take Effect in a Matter of Days

Brazil’s long-anticipated data protection law, Lei Geral De Proteção de Dados Pessoais (“General Law for Data Protection” or “LGPD”), now appears positioned to take effect in a matter of days.  Ever since the law was originally passed in August 2018, implementation and enforcement timelines have been in flux.  In a rather sudden turn of events last week, however, dramatic back-to-back votes by each house of Brazil’s National Congress now put the substantive provisions of the LGPD on track to take effect in a few days’ time, upon approval by Brazil’s president.  The LGPD’s administrative fines and sanctions provisions remain scheduled to take effect next year in August 2021. READ MORE

Parkview Health Decision Highlights Vicarious Data Breach Liability Risk in the United States

A recent decision in Indiana highlights the data security liability risks facing employers based on the actions of their employees, extending vicarious liability even to cases where the employees were acting wholly for personal purposes. In SoderVick v. Parkview Health Sys., Inc., the Court of Appeals of Indiana reversed summary judgment in favor of the defendant, reviving claims of respondeat superior against Parkview Health Systems, Inc. (“Parkview”) where the hospital’s employee texted personal health information to a third party. No. 19A-CT-2671, 2020 WL 2503923 (Ind. Ct. App. May 15, 2020). We recently noted a decision of the Supreme Court of the United Kingdom in WM Morrison Supermarks plc v. Various Claimants (“Morrison”) where the Court made the contrary determination, ruling that the large supermarket chain Morrison could not be held vicariously liable as a matter of law for the intentional acts of a rogue employee who posted the payroll data of Morrison employees on the Internet. But as we also explained, businesses that collect personal information should be cautious about reading too much into that ruling: while the Court allowed the appeal in favor of Morrison, the decision turned on the particular facts of the case (where the rogue employee actively tried to damage his employer). The Parkview Health decision further underscores this need for caution, especially with increased remote work due to COVID-19 where the risk of employers being sued over security breaches caused by their employees is, unfortunately, ever-increasing. READ MORE

Seventh Circuit Bolsters Article III Standing for Actions Under the Illinois Biometric Information Privacy Act

On May 5, 2020, the Seventh Circuit held in Bryant v. Compass Group USA, Inc. that a plaintiff who asserted a violation of the Illinois Biometric Information Privacy Act’s (“BIPA’s”) notice and consent requirements had Article III standing to pursue her claim in federal court. With respect to BIPA’s retention schedule posting requirement, however, the Seventh Circuit found that allegations of a statutory violation did not, on their own, suffice to confer Article III standing. This decision will make it easier for defendants to keep BIPA claims in federal court, and its standing analysis has significant implications for BIPA cases, as well as other privacy and data security cases more broadly.

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EDPB Tears Down Cookie Walls – Implementation of Cookies in Europe Becomes Even More Challenging

On May 4, the European Data Protection Board (“EDPB”)—an independent body which ensures that the General Data Protection Regulation (“GDPR”) is consistently applied within the EU—has updated its guidelines on consent under the GDPR, clarifying its requirements regarding the GDPR compliant use of cookies on a website. READ MORE

Class Actions For Security Breaches in the UK Are Here To Stay

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

How to Move to Remote Work and Comply with U.S. Privacy and Cybersecurity Laws

Cybercriminals are known to attack networks and individuals at inopportune times of crisis—and the coronavirus pandemic unfortunately presents just such an opportunity as millions are accessing corporate networks and databases from home. This past weekend New Jersey and Connecticut joined the growing list of jurisdictions (e.g., California, Delaware, Illinois, Louisiana, Ohio, and New York) to issue orders effectively requiring non-essential workers to avoid the workplace, and in some cases, to shelter-in-place. READ MORE

ICO FINES: WHEN IS AN APPEAL APPEALING?

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.

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The CCPA Is in Effect and It Is Not Too Late to Get Started in 2020

Happy New Year! At long last, the California Consumer Privacy Act of 2018 (“CCPA”) went into effect yesterday, January 1, 2020. For those who have not yet heard, the CCPA establishes a comprehensive legal framework to govern the collection and use of personal information, both online and offline, and provides unprecedented privacy rights to California consumers, in effect becoming the de facto national standard for U.S. privacy law. The law introduces new legal risks and considerations for companies that collect information from California consumers, due to the law’s expansive scope, broad definition of personal information, increased disclosure obligations, enhanced consumer rights, potential for statutory fines and, in the event of a security incident, the potential for consumer class action litigation. READ MORE

A Survival Guide for GDPR Enforcement Actions from a German Perspective – How to Assess and Mitigate Fines for GDPR Violations

Chinese: GDPR 执法措施的德国生存指南—如何评估和减低违反GDPR的罚款

Since the first enforcement actions have been initiated, some with significant fines, many companies may find themselves somewhat at a loss as they may not fully know how to assess the risks involved and how to react should an enforcement action be initiated against them. Here we will give a high-level overview on risks and strategies in enforcement actions. READ MORE