International

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

German Supervisory Authority Publishes First Substantive Guidance on International Data Transfers in the Post Schrems 2.0 Era

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

Highest Administrative Court in France Upholds Google’s €50 Million Fine

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

French Court Annuls Parts of the CNIL’s Cookie Guidelines

On June 19, 2020, the Conseil d’Etat, the highest administrative court in France, annulled in part the cookie guidelines issued by the CNIL (the French data protection authority). The court ruled that the CNIL did not have the power to prohibit “cookie walls” (i.e., the practice of blocking access to a site or app for users who do not consent to the use of cookies) in the guidelines. READ MORE

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

Covid 19 Data Sharing – Pragmatic Insights from the EU and U.K. Regulators

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

Guidance from E.U. Supervisory Authorities on Data Processing in a Time of COVID-19

The European Data Protection Board (EDPB) and a number of European data protection supervisory authorities have recently issued guidance on processing personal data, including special categories of personal data (i.e., health data), in connection with COVID-19. While the General Data Protection Regulation (“GDPR”) generally harmonizes data protection laws across Europe, E.U. Member States may derogate from the law in certain circumstances, including in matters of “public interest.” It is therefore critical for companies to keep abreast of the latest guidance issued by supervisory authorities in jurisdictions relevant to their businesses to ensure they comply with any local law guidance. READ MORE

E-Commerce Businesses Beware: The Freedom to Contract does not Trump Reasonable Privacy Expectations

The EDPB’s new Guidelines on Article 6(1)(b) may severely limit e-commerce business’ ability to enhance data processing by unilaterally defining contractual services.

On October 8, 2019, the European Data Protection Board (“EDPB”) released the “Guidelines 2/2019 on the processing of personal data under Article 6(1)(b) GDPR in the context of the provision of online services to data subjects” (the “Guidelines”) after public consultation. The text of the Guidelines is available here. Largely in line with previous guidance, the EDPB takes the view that companies cannot expand legal justifications for data processing operations based on broader definitions of their services. The legal justification of a processing for performing a contract does not cover processing operations, which, reasonably, the individuals would not expect when entering into the contract. Businesses should thus carefully review the legal justifications for the processing operations and be prepared to consider limitations on certain data processing should individuals object. READ MORE

No Consent, No Cookie! CJEU Issues Far-Reaching Decision on Cookie Consent

In its long-awaited judgment, the European Court of Justice (CJEU) decided the data protection requirements for obtaining consent when using cookies. The court held that “passive” acceptance of cookies through prechecked boxes, or by posting a banner and assuming consent with continued browsing of the website, is not an acceptable form of consent. According to the CJEU, “consent” requires active behavior in the form of interaction with the banner, or some other affirmative action indicating consent. The court held that website operators must ensure this level of consent prior to placing any cookies that require consent for storing or accessing information stored on the user’s device. The court’s decision removes all legal ambiguities on the level of consent required for cookies, and website operators are wise to review their use of cookies as a result.

This alert will analyze the CJEU’s decision, provide a summary of the current regulators’ views and give practical guidance on what website operators should do. READ MORE

New law decreases the number of companies required to designate a Data Protection Officer in Germany

On June 28, 2019, the German parliament (Bundestag) passed new legislation imposing several changes to the current German Federal Data Protection Act (“BDSG”).  Although many of the changes addressed privacy aspects of criminal proceedings, the new legislation makes an important change for small companies by increasing the threshold to designate a Data Protection Officer (“DPO”). Whereas currently companies have to designate a DPO if they constantly employ at least 10 employees who deal with the automated processing of personal data, the new legislation increases the minimum number of employees from 10 to 20, significantly decreasing the financial and administrative burden for small companies doing business in Germany. This article explains the changes and their impact and explains what companies should do.

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