Privacy & Information Security Law Blog

On April 11, 2019, the People’s Republic of China’s Network Security Bureau of the Ministry of Public Security, the Beijing Network Industry Association and the Third Research Institution of the Ministry of Public Security jointly released a “Guide to Protection of Security of Internet Personal Information (the “Guide”). The Guide presents itself as a reference, rather than a legally-enforceable regulation, but how it will interact with cybersecurity-related law, regulations and standards in practice remains to be seen.

The French Data Protection Authority (the “CNIL”) recently published its Annual Activity Report for 2018 (the “Report”) and released its annual inspection program for 2019.

On April 25, 2019, the Belgian Data Protection Authority (the “Belgian DPA”) published its Annual Activity Report for 2018 (the “Annual Report”), highlighting the main developments and accomplishments of the past year.

On April 15, 2019, the UK Information Commissioner’s Office (the “ICO”) issued for public consultation a draft code of practice, “Age Appropriate Design,” that will regulate the provision of online services likely to be accessed by children in the UK. Given the extraterritorial reach of the UK Data Protection Act 2018, organizations based outside of the UK may be subject to the code, which is expected to take effect by the end of 2019. The deadline for responding to the public consultation is May 31, 2019.

On April 24, 2019, the Federal Trade Commission announced two data security cases involving online operators—one, an online rewards website, and the second, a dress-up games website—that were alleged to have failed to take reasonable steps to secure consumers’ data, which allowed hackers to breach both websites.

On April 15, 2019, the Greek Data Protection Authority (“DPA”) fined Hellenic Petroleum S.A. EUR 20,000 for unlawful processing of personal data and EUR 10,000 for failing to adopt appropriate data security measures.

On April 22, 2019, Washington state legislators voted to send HB 1071 (the “Bill”) to Governor Jay Inslee for consideration. The Bill was requested by Attorney General Ferguson and would strengthen Washington’s data breach law. The request to amend the current law followed Attorney General Ferguson’s third annual Data Breach Report, which found that data breaches affected nearly 3.4 million Washingtonians between July 2017 and July 2018.

On April 17, 2019, the Dutch Data Protection Authority, the Autoriteit Persoonsgegevens (the “Dutch DPA”) issued six recommendations (in Dutch) for companies, to be taken into account when drafting privacy policies for the purpose of Article 24.2 of the EU General Data Protection Regulation (the “GDPR”). Article 24.2 of the GDPR provides the obligation for data controllers to implement privacy policies for accountability purposes, under certain criteria. The published recommendations follow the Dutch DPA’s investigation of companies’ privacy policies. The investigation focused on companies that process sensitive personal data, including health data and data related to individuals’ political beliefs. Alongside the recommendations, the Dutch DPA released a report (in Dutch) summarizing the investigation’s results.

Earlier this month, the U.S. Department of Justice (“DOJ”) published a white paper entitled “Promoting Public Safety, Privacy, and the Rule of Law Around the World: The Purpose and Impact of the CLOUD Act” (“White Paper”). The Clarifying Lawful Overseas Use of Data Act (the “CLOUD Act”) was enacted in March 2018 by the U.S. government to aid foreign and U.S. investigators in obtaining access to electronic information related to serious crimes and held by service providers. The CLOUD Act authorizes the U.S. to enter into bilateral agreements with foreign countries that abide by a baseline standard for rule-of-law, privacy and civil liberties protections to streamline processes for obtaining electronic evidence. The CLOUD Act also codifies the principle that a company subject to U.S. jurisdiction “can be required to produce data the company controls, regardless of where it is stored at any point in time.”

On October 22, 2018, the UK Court of Appeal upheld the High Court’s decision that VM Morrison Supermarkets PLC (“Morrisons”) was vicariously liable for a data breach caused by a disgruntled former employee, despite Morrisons being cleared of any wrongdoing (VM Morrison Supermarkets PLC v Various Claimants). The case is important, given its potential “floodgate” effect on data breach class action claims in the UK. The Supreme Court has granted Morrisons permission to appeal the judgment on all grounds.

Hunton Andrews Kurth LLP is pleased to announce the launch of a dedicated site focused on the California Consumer Privacy Act of 2018 (“CCPA”), which serves as a resource for businesses to understand and prepare to comply with the CCPA. Transformative in nature, the CCPA will impact most businesses that process the personal information of California residents, and is likely to set the stage for a wider shift in standards on data privacy across the United States.

The much-discussed Washington Privacy Act, Senate Bill 5376 (“SB 5376”), appears to have died after failing to receive a House vote by an April 17, 2019 deadline for action on non-budget policy bills. Though the bill could be revived before the regular session ends on April 28, 2019, Washington lawmakers expressed doubt.

On April 9, 2019, the UK Information Commissioner’s Office (the “ICO”) levied one of its most significant fines under the Data Protection Act 1998 (the “DPA”) against pregnancy and parenting club Bounty (UK) Limited (“Bounty”), fining the company GBP 400,000. Bounty, which provides new and expectant mothers with information and offers for products and services, collects personal data online, via an app, and offline through hard copy cards. The company also offered a data broking service. Bounty came to the attention of the ICO as a “significant supplier” of personal data in the context of the ICO’s wider and ongoing investigation into the data broking industry.

On April 12, 2019, the European Data Protection Board (“EDPB”) published draft guidelines 2/2019 on the processing of personal data in the context of the provision of online services to data subjects (the “Guidelines”).

On April 12, 2019, Senator Edward J. Markey (MA) introduced the Privacy Bill of Rights Act (the “Act”), comprehensive privacy legislation intended to protect individuals’ “personal information,” defined as “information that directly or indirectly identifies, relates to, describes, is capable of being associated with, or could reasonably be linked to, a particular individual.” This definition is substantially similar to the definition of “personal information” contained in the California Consumer Privacy Act of 2018. The Act also includes an enumerated list of examples that constitute “personal information” and specifically excludes certain publicly available information from the term.

On April 11, 2019, the French Data Protection Authority (the “CNIL”) launched an online public consultation regarding two new CNIL draft standards (“Referentials”) concerning the processing of personal data for (1) core HR management purposes and (2) the operation of a whistleblowing hotline.

Social media platforms, file hosting sites, discussion forums, messaging services and search engines in the UK are likely to come under increased pressure to monitor and edit online content after the UK Department of Digital, Culture, Media and Sport (“DCMS”) announced in its Online Harms White Paper (the “White Paper”), released this month, proposals for a new regulatory framework to make companies more responsible for users’ online safety. Notably, the White Paper proposes a new duty of care owed to website users, and an independent regulator to oversee compliance.

The European Commission (the “Commission”) has released a long-awaited study on GDPR data protection certification mechanisms (the “Study”). As we previously reported, the Commission announced its intention to look into GDPR certifications in January of 2018.

During the week of April 1, 2019, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth LLP hosted its annual executive retreat in Washington, D.C. (the “Retreat”). During the Retreat, CIPL held a full-day working session on evolving technologies and a new U.S. privacy framework followed by a closed members only half-day roundtable on global privacy trends with special guest Helen Dixon, Data Protection Commissioner of Ireland.

On April 8, 2019, the European Commission High-Level Expert Group (the “HLEG”) on Artificial Intelligence released the final version of its Ethics Guidelines for Trustworthy AI (the “Guidelines”). The Guidelines’ release follows a public consultation process in which the HLEG received over 500 comments on its initial draft version. The Centre for Information Policy Leadership at Hunton Andrews Kurth LLP contributed its own comments during this process.

On March 29, 2019, the UK Information Commissioner’s Office (the “ICO”) announced that it has opened its sandbox beta phase for applications (the “Beta Phase”).

On January 25, 2019, Nigeria’s National Information Technology Development Agency (“NITDA”) issued the Nigeria Data Protection Regulation 2019 (the “Regulation”). Many concepts of the Regulation mirror the EU General Data Protection Regulation (“GDPR”).

On March 28, 2019, the French data protection authority (“CNIL”) published a “Model Regulation” addressing the use of biometric systems to control access to premises, devices and apps at work. The Model Regulation lays down binding rules for data controllers who are subject to French data protection law and process employee biometric data for such purposes. The CNIL also released a related set of questions and answers (“FAQs”).

Hunton Andrews Kurth LLP, in coordination with the U.S. Chamber of Commerce, recently issued a report setting forth best practices for an effective data breach notification framework (the “Report”). Lead Hunton authors are Lisa J. Sotto, chair of the Global Privacy and Cybersecurity practice, and partners Brittany M. Bacon and Aaron P. Simpson.

The UK Information Commissioner’s Office (“ICO”) has issued a Monetary Penalty Notice to pensions release provider Grove Pensions Solutions Ltd (“Grove”), fining it £40,000 after the company used contact details collected by a third party for its direct marketing campaign. Grove used a specialist third-party marketing agency to send emails on its behalf to mailing lists, negligently failing to obtain valid consent from individuals who received the marketing emails. Despite seeking external advice (including legal advice), the ICO decided that Grove should have known of the risk that its conduct would breach rules on direct marketing, particularly given recent widespread publicity of this issue in the UK. The fine was imposed under the Data Protection Act 1998.

On March 29, 2019, the Belgian House of Representatives appointed a new commissioner and four directors, who will lead the reformed Belgian data protection authority (“DPA”). The appointments follow a vote of the plenary of the Belgian parliament.

On March 27, 2019, Utah Governor Gary Herbert signed HB57, the first U.S. law to protect electronic information that individuals have shared with certain third parties. The bill, called the “Electronic Information or Data Privacy Act,” places restrictions on law enforcement’s ability to obtain certain types of “electronic information or data” of a Utah resident, including (1) location information, stored data or transmitted data of an electronic device, and (2) data that is stored with a “remote computing service provider” (i.e., data stored in digital devices or servers).  The law provides for situations in which law enforcement may obtain such information without a warrant.