Today the EU-U.S. Privacy Shield was approved by the EU Member States, which sets the stage for the European Commission to grant final approval to the Privacy Shield as a basis for EU-U.S. transfers of personal data.
This development follows criticisms of the Privacy Shield this past April from the Article 29 Working Party, an advisory group comprised of the EU privacy regulators. We summarized the primary criticisms in a prior blog post. The Working Party was responding to the draft adequacy decision that was released by the European Commission on February 29, 2016, which we summarized here. The revisions to the Privacy Shield are intended to address the criticisms of the Working Party but it is not yet clear if the criticisms have been fully reflected.
Recent enforcement actions by the Bavarian Data Protection Authority (DPA) [Bayerisches Landesamt für Datenschutzaufsicht] highlight the importance of severe restrictions placed on the transfer of such data, even in the context of a merger/acquisition deal scenario. Specifically, on July 30, 2015 the Bavarian DPA announced that it has fined two companies, both the seller and the acquirer, in an asset deal with a five figure EUR sum for transferring customer e-mail-addresses collected during operating an online shop in violation of the German Federal Data Protection Act. Clients should expect to see more of these actions in the future, given the Bavarian DPA’s announcement that it will pay increased attention to data protection compliance in asset deals and shall accordingly monitor and fine the companies breaching the legal requirements with more persistence.