With the end of the Brexit transition period rapidly approaching and the United Kingdom (UK) poised to become a “third country” after it leaves the European Union (EU), the UK and the EU have yet to reach any “deal” on how the transfer of personal data should be dealt with starting January 1, 2021. With the negotiations deep into their final phase, the advice from regulators, including the UK’s Information Commissioner’s Office (ICO), is that organisations should be taking steps to prepare for the UK becoming a third country (for the EU data protection regime) after Brexit.
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
Join Orrick and the Silicon Valley Arbitration and Mediation Center (SVAMC) on November 4, 2020, for a complimentary webinar on how arbitration can deal with substantive data, privacy and cyber issues arising in international disputes. Orrick’s James Hargrove (International Arbitration partner/Geneva and London) and Keily Blair (Cyber, Privacy & Data Innovation partner/London) will join other panelists to address current topics in arbitrating data and cyber issues, for example, arbitrability, mass arbitrations, multiplicity of proceedings, follow-on claims from data breaches, territorial limitations, interim and final relief and sanctions, future issues – how will arbitration deal with the ever-growing importance and value of data. Keily, James and their fellow panelists will put an up-to-date focus on data, privacy and cyber issues in arbitration proceedings, with a discussion of current practices, remote hearings and technological advances, hearings protocols, increased cyber risks and steps to protect data integrity. Learn more and register here.
Webinar | November 4, 2020 | 12:00pm – 1:00pm EST
On October 1st, 2020, the Data Protection Authority of Hamburg (“DPA”) announced that it issued a massive EUR 35.3 million fine against the clothing company H&M Hennes & Mauritz Online Shop A.B. & Co. KG (“H&M”) for the alleged wrongful collection of data of a couple of hundred employees which related to their private life (the English press release can be accessed here). This is the highest fine that has ever been issued in Germany, sending a strong signal to companies to ensure they comply with the data protection law when they process employee data. READ MORE
In September 2020, the UK government published its National Data Strategy (“NDS”), aiming to use data to boost the UK economy and to “unlock the power of data for the UK,” particularly in light of Brexit. The NDS is intended to set out the UK’s government focus on data, following the recent announcement that responsibility for government use of data will move from the Department for Digital Culture Media and Sport to the Cabinet Office. READ MORE
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
On 16 July, 2020 the European Court of Justice (“CJEU”) published its decision invalidating the EU-U.S. Privacy Shield and setting out enhanced requirements for using the so-called Standard Contractual Clauses for Processors (Decision 2016/1250 – “SCCs”) (judgement C-311/18 – “Schrems II”). See our previous blog on the Schrems II decision for further details. Shortly thereafter, the European Data Protection Board (“EDPB”) adopted FAQs (see our follow-up blog post), which mainly focused on how to conduct the required risk assessment in connection with the SCCs. READ MORE
On January 21, 2019, the CNIL (the French data protection authority) issued a fine of €50 million to Google under the General Data Protection Regulation (the “GDPR”) for its failure to (1) provide notice in an easily accessible form, using clear language, when users configured their Android mobile device, and (2) obtain users’ consent to process personal data for ad personalization purposes. The CNIL’s enforcement action and resulting fine arose out of actions filed by two not-for-profit associations, None of Your Business and La Quadrature du Net. The fine was the first significant fine imposed by the CNIL under the GDPR and remains one of the highest fines to date. In determining the amount of the fine, the CNIL considered the fact that the violations related to essential principles under the GDPR (transparency and consent), the violations were continuing, the importance of the Android operating system in France, and the fact that the privacy notice presented to users covered a number of processing operations. Google appealed the decision. READ MORE