Privacy & Information Security Law Blog

On January 10, 2018, the Law of 3 December 2017 creating the Data Protection Authority (the “Law”) was published in the Belgian Official Gazette. The Law was submitted in the Chamber of Representatives on August 23, 2017, and was approved by the Parliament in plenary meeting on November 16, 2017.

What were the hottest privacy and cybersecurity topics for 2017? Our posts on the EU General Data Protection Regulation (“GDPR”), EU-U.S. Privacy Shield, and the U.S. executive order on cybersecurity led the way in 2017. Read our top 10 posts of the year.

On December 12, 2017, the Article 29 Working Party (“Working Party”) published its guidelines on transparency under Regulation 2016/679 (the “Guidelines”). The Guidelines aim to provide practical guidance and clarification on the transparency obligations introduced by the EU General Data Protection Regulation (“GDPR”). The transparency obligations require controllers to provide certain information to data subjects regarding the processing of their personal data.

Recently, the EU’s Article 29 Working Party (the “Working Party”) adopted guidelines (the “Guidance”) on the meaning of consent under the EU General Data Protection Regulation (“GDPR”). In this Guidance, the Working Party has confirmed that consent should be a reversible decision where a degree of control must remain with the data subject. The Guidance provides further detail on what is necessary to ensure that consent satisfies the requirements of the GDPR:

Recently, the EU’s Article 29 Working Party (”Working Party”) held a plenary meeting to discuss, among other things, the implementation of the EU General Data Protection Regulation (“GDPR”) and the EU-U.S. Privacy Shield. As well as adopting its first Joint Annual Review Report on the Privacy Shield, the Working Party has been working on a number of documents that offer review and/or guidance on the GDPR, including:

• guidelines on (1) consent and transparency, (2) data protection certifications, and (3) derogations for personal data transfers under the GDPR;
• updated “referentials” on adequacy and binding corporate rules for data controllers and processors; and
• tools for cooperation between data protection authorities on data breach notifications.

On December 1, 2017, the Centre for Information Policy Leadership (“CIPL”) at Hunton & Williams LLP submitted formal comments to the Article 29 Working Party (the “Working Party”) on its Guidelines on Automated Individual Decision-Making and Profiling (the “Guidelines”). The Guidelines were adopted by the Working Party on October 3, 2017, for public consultation.

On December 1, 2017, the Centre for Information Policy Leadership (“CIPL”) at Hunton & Williams LLP submitted formal comments to the Article 29 Working Party (the “Working Party”) on its Guidelines on Personal Data Breach Notification (the “Guidelines”). The Guidelines were adopted by the Working Party on October 3, 2017, for public consultation.

As we previously reported, this October, the EU Commission released its report and accompanying working document on the first annual review of the EU-U.S. Privacy Shield framework. On November 28, 2017, the Article 29 Data Protection Working Party (the “Working Party”) adopted an opinion on the review (the “Opinion”). While the Opinion notes that the Working Party “welcomes the various efforts made by US authorities to set up a comprehensive procedural framework to support the operation of the Privacy Shield,” the Opinion also identifies some remaining concerns and ...

On November 29, 2017, the EU’s Article 29 Working Party (”Working Party”) announced the establishment of a task force to coordinate the plethora of national investigations throughout the EU into Uber’s 2016 data breach that affected approximately 57 million users worldwide. The task force is being led by the data protection authority (”DPA”) in the Netherlands, where Uber has its EU headquarters, and includes representatives from the DPAs in France, Italy, Germany, Belgium, Spain and the United Kingdom.

On November 20, 2017, the UK Information Commissioner’s Office (“ICO”) published an article on its blog containing advice on applications for Binding Corporate Rules (“BCRs”) to comply with requirements under the EU General Data Protection Regulation (“GDPR”). BCRs, which are one of the legal mechanisms available to support transfers of personal data outside the EEA, are codified under the GDPR, prompting a number of companies to explore the possibility of applying for BCR authorization. In its article, the ICO stressed that it will continue to accept applications for BCRs in the lead up to GDPR implementation on May 25, 2018, and beyond, and that the UK’s exit from the European Union, currently scheduled for the end of March 2019, will not result in the cancellation of any of the approximately 40 BCR applications currently being considered by the ICO.

On November 8, 2017, the United States District Court for the Northern District of California ordered German defendants in an ongoing patent suit, BrightEdge Technologies, Inc. v. Searchmetrics GmbH, to produce a particular database, despite the defendants’ claims that such production would violate German privacy laws.

On October 24, 2017, an opinion issued by the EU’s Advocate General Bot (“Bot”) rejected Facebook’s assertion that its EU data processing activities fall solely under the jurisdiction of the Irish Data Protection Commissioner. The non-binding opinion was issued in relation to the CJEU case C-210/16, under which the German courts sought to clarify whether the data protection authority (“DPA”) in the German state of Schleswig-Holstein could take action against Facebook with respect to its use of web tracking technologies on a German education provider’s fan page without first providing notice.

The Centre for Information Policy Leadership at Hunton & Williams LLP (“CIPL”) recently submitted responses to the Irish Data Protection Commissioner (IDPC Response) and the CNIL (CNIL Response) on their public consultations, seeking views on transparency and international data transfers under the EU General Data Protection Regulation (“GDPR”).

The responses address a variety of questions posed by both data protection authorities (“DPAs”) and aim to provide insight on and highlight issues surrounding transparency and international transfers.

On October 17, 2017, the Article 29 Working Party (“Working Party”) issued Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679 (the “Guidelines”). The Guidelines aim to clarify the EU General Data Protection Regulation’s (“GDPR’s”) provisions that address the risks arising from profiling and automated decision-making.

On October 19, 2017, the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (“LIBE Committee”) narrowly voted to approve an amended version of the e-Privacy Regulation (“Regulation”). The committee vote is an important step in the process within the European Parliament. This vote will be followed by a vote of the European Parliament in its plenary session on October 23-26. If the plenary also votes in favor, the European Parliament will have a mandate to begin negotiations with the Member States in the Council. If these negotiations (commonly known as “trilogue”) succeed, the Regulation will be adopted.

On October 18, 2017, the EU Commission (“Commission”) released its report and accompanying working document on the first annual review of the EU-U.S. Privacy Shield framework (collectively, the “Report”). The Report states that the Privacy Shield framework continues to ensure an adequate level of protection for personal data that is transferred from the EU to the U.S. It also indicates that U.S. authorities have put in place the necessary structures and procedures to ensure the proper functioning of the Privacy Shield, including by providing new redress possibilities for EU individuals and instituting appropriate safeguards regarding government access to personal data. The Report also states that Privacy Shield-related complaint-handling and enforcement procedures have been properly established.

On October 4, 2017, the Article 29 Working Party (the “Working Party”) revised and adopted the final version of the Guidelines on data protection impact assessments (DPIA) and determining whether processing is “likely to result in a high risk” for the purposes of Regulation 2016/679 (the “Guidelines”). The Guidelines were first published for comment on April 4, 2017, and the final publication of these revised Guidelines follows the public consultation that ended in May 2017.

On September 29, 2017 the French Data Protection Authority (CNIL) published a guide for data processors to implement the new obligations set by the EU General Data Protection Regulation (“GDPR”). The guidance addresses the extended scope of the GDPR and the new and direct obligations data processors will have when the GDPR comes into force on May 25, 2018. The guidance elaborates a three-step checklist for data processors:

On October 3, 2017, the Irish High Court referred a legal challenge to the validity of the EU Standard Contractual Clauses (“SCCs”) to the Court of Justice of the European Union (“CJEU”) for resolution. Max Schrems, who had previously successfully challenged the validity of the now defunct U.S.-EU Safe Harbor Program in the Schrems case, had brought a similar claim in relation to the SCCs, and had requested that the Irish Data Protection Commissioner (“DPC”) declare that the SCCs do not provide sufficient protection when personal data is transferred outside the EU to the US and thus are invalid. The Irish DPC declined to make such a ruling, but instead referred the case to the Irish High Court, and requested that the case be referred to the CJEU for a final decision on the validity of the SCCs.

On September 25, 2017, the Centre for Information Policy Leadership (“CIPL”) at Hunton & Williams LLP issued a discussion paper on Regulating for Results: Strategies and Priorities for Leadership and Engagement (the “Discussion Paper”). The Discussion Paper aims to stimulate dialogue about strategies and priorities for data protection authorities (“DPAs”) by putting forward a number of key questions. For example:

On September 20, 2017, the French Data Protection Authority (CNIL) announced that it has updated two standards on privacy seals in order to take into account the requirements of the EU General Data Protection Regulation (“GDPR”).

On September 19, 2017, the French Data Protection Authority (“CNIL”) launched an online public consultation on two topics identified by the Article 29 Working Party (“Working Party”) in its 2017 action plan for the implementation of the EU General Data Protection Regulation (“GDPR”). These two topics are transparency and international data transfers.

Hunton & Williams LLP is pleased to announce that Lisa Sotto, chair of the firm’s top-ranked Global Privacy and Cybersecurity practice and managing partner of the firm’s New York office, has been selected as an arbitrator in connection with the EU-U.S. Privacy Shield Framework Binding Arbitration Program.

On September 18, 2017, the European Commission (“Commission”) and U.S. Department of Commerce (“Department”) kicked off their first annual joint review of the EU-U.S. Privacy Shield (“Privacy Shield”).  To aid in the review, the Department invited a few industry leaders, including Hunton & Williams’ partner Lisa J. Sotto, who chairs the firm’s Global Privacy and Cybersecurity practice and the U.S. Department of Homeland Security’s Data Privacy and Integrity Advisory Committee, to speak about their experiences during the first year of the Privacy Shield.

On September 8, 2017, the Council of the European Union published its proposed revisions to the draft E-Privacy Regulation (“EPR”), which was first published by the European Commission in January 2016. The revisions have been made based on written comments and discussions involving the Working Party for Telecommunications and Information Society (“WP TELE”) and serve as a discussion for further meetings of the group in late September 2017.

On September 14, 2017, the UK Government introduced a new Data Protection Bill (the “Bill”) to Parliament. The Bill is intended to replace the UK’s existing Data Protection Act 1998 and enshrine the EU General Data Protection Regulation (the “GDPR”) into UK law once the UK has left the European Union. The GDPR allows EU Member States to enact, via national law, exemptions from the various provisions of the GDPR, which the Bill also seeks to implement.

On September 13, 2017, the European Commission and the High Representative of the Union for Foreign Affairs and Security Policy published a Joint Communication to the European Parliament and the Council of the European Union on “Resilience, Deterrence and Defence: Building strong cybersecurity for the EU” (“Joint Communication”). This Joint Communication is part of a package of EU documents adopted on the same date aimed at delivering a stronger EU response to cyber attacks. In particular, the Joint Communication puts forward targeted measures to (1) build greater EU resilience to cyber attacks, (2) better detect cyber attacks, and (3) strengthen international cooperation on cybersecurity.

On September 11, 2017, the Centre for Information Policy Leadership (“CIPL”) at Hunton & Williams LLP issued a white paper on the Proposal for an ePrivacy Regulation (the “White Paper”). The White Paper comments on the European Commission’s proposal to replace and modernize the privacy framework for electronic communications contained in the current ePrivacy Directive and to align it with the EU General Data Protection Regulation (“GDPR”).

On September 8, 2017, the Federal Trade Commission announced that it had settled charges against three companies for misleading consumers about their participation in the Privacy Shield framework. The FTC alleged that Decusoft, LLC, Tru Communication, Inc. and Md7, LLC violated the FTC Act by falsely claiming that they were certified to the EU-U.S. Privacy Shield, when in fact the three companies never completed the Privacy Shield certification process. In addition, Decusoft falsely claimed to be certified to the Swiss-U.S. Privacy Shield. This marks the first enforcement action brought by the FTC pursuant to the Privacy Shield.

On August 24, 2017, APEC issued a statement on the renewed talks between APEC and the EU on creating interoperability between the APEC Cross-Border Privacy Rules (“CBPR”) and the EU data transfer mechanisms.

Recently, the fourth edition of the book, The International Comparative Legal Guide to: Data Protection 2017, was published by the Global Legal Group. Hunton & Williams’ Global Privacy and Cybersecurity lawyers prepared several chapters in the guide, including the opening chapter on “All Change for Data Protection: The European Data Protection Regulation,” co-authored by London partner Bridget Treacy and associate Anita Bapat. Several other global privacy and cybersecurity team members also prepared chapters in the guide, including David Dumont (Belgium), Claire François (France), Judy Li (China), Manuel E. Maisog (China), Wim Nauwelaerts (Belgium), Anna Pateraki (Germany), Aaron P. Simpson (United States), Adam Smith (United Kingdom) and Jenna Rode (United States).

On August 7, 2017, the UK Government’s Department for Culture, Media and Sport published a Statement of Intent setting out the planned reforms to be included in the forthcoming Data Protection Bill, which we previously reported is expected to be laid before the UK Parliament in early September.

Media sources have reported that the UK Department for Culture, Media & Sport has confirmed its plans to present its Data Protection Bill to Parliament when MPs return to Parliament in early September. The Bill follows commitments made in the Queen’s Speech in June, and will effectively copy the EU General Data Protection Regulation (“GDPR”) into the UK statute book. The Bill’s primary aim is to ensure that the UK retains the same data protection laws as the rest of the EU once it leaves the EU, which is likely to be in March 2019.

On July 18, 2017, the European Union Committee of the UK’s House of Lords published its paper, Brexit: the EU data protection package (the “Paper”). The Paper urges the UK government to make good on its stated aim of maintaining unhindered and uninterrupted data flows between the UK and EU after Brexit, and examines the options available to ensure that this occurs. It warns that data flows have become so valuable to cross-border business that failure to establish an adequate framework could hamper EU-UK trade.

On July 26, 2017, the Court of Justice of the European Union (“CJEU”) declared that the envisaged EU-Canada agreement on the transfer of Passenger Name Records (“PNR Agreement”) interferes with the fundamental right to respect for private life and the right to the protection of personal data and is therefore incompatible with EU law in its current form. This marks the first instance where the CJEU has been asked to rule on the compatibility of a draft international agreement with the European Charter of Fundamental Human Rights.

This post has been updated. 

The Belgian Privacy Commission (the “Belgian DPA”) recently released a Recommendation regarding the requirement to maintain internal records of data processing activities (the “Recommendation”) pursuant to Article 30 of the EU General Data Protection Regulation (“GDPR”).

The Recommendation aims to provide guidance to data controllers and data processors in establishing and maintaining internal records by May 25, 2018. As of that date, the internal records requirement must be complied with, and the Belgian DPA must be able to request that such records are made available to it.

The Article 29 Working Party (“Working Party”) recently issued its Opinion on data processing at work (the “Opinion”). The Opinion, which complements the Working Party’s previous Opinion 08/2001 on the processing of personal data in the employment context and Working document on the surveillance of electronic communications in the workplace, seeks to provide guidance on balancing employee privacy expectations in the workplace with employers’ legitimate interests in processing employee data. The Opinion is applicable to all types of employees and not just those under an employment contract (e.g., freelancers).

On June 21, 2017, in the Queen’s Speech to Parliament, the UK government confirmed its intention to press ahead with the implementation of the EU General Data Protection Regulation (“GDPR”) into national law. Among the announcements on both national and international politics, the Queen stated that, “A new law will ensure that the United Kingdom retains its world-class regime protecting personal data, and proposals for a new digital charter will be brought forward to ensure that the United Kingdom is the safest place to be online.” The statement confirms the priority ...

Recently, the Belgian Privacy Commission (the “Belgian DPA”) released a Recommendation (in French and Dutch) regarding the requirement to appoint a data protection officer (“DPO”) under the EU General Data Protection Regulation (“GDPR”).

On June 7, 2017, the European Commission published a paper signalling the EU’s intention to increase its role in directing cybersecurity policy and responses across its member states. The increasing threat posed by cyber attacks is highlighted in the EU Commission’s Reflection Paper on the Future of European Defence, which builds its case for closer union in respect of defense efforts.

Recently, the Centre for Information Policy Leadership (“CIPL”) at Hunton & Williams LLP issued a white paper on Recommendations for Implementing Transparency, Consent and Legitimate Interest under the GDPR (the “White Paper”). The White Paper sets forth guidance and recommendations on the key concepts of transparency, consent and legitimate interest under the EU General Data Protection Regulation (“GDPR”).

On June 2, 2017, in preparation for the first annual review of the EU-U.S. Privacy Shield (“Privacy Shield”) framework, the European Commission has sent questionnaires to trade associations and other groups, including the Centre for Information Policy Leadership at Hunton & Williams LLP, to seek information from their Privacy Shield-certified members on the experiences of such organizations during the first year of the Privacy Shield. The EU Commission intends to use the questionnaire responses to inform the annual review of the function, implementation, supervision and enforcement of the Privacy Shield.

The Centre for Information Policy Leadership (“CIPL”) at Hunton & Williams LLP recently submitted formal comments (“Comments”) to the Article 29 Working Party’s (“Working Party’s”) Guidelines on Data Protection Impact Assessment (DPIA) and determining whether processing is “likely to result in a high risk” for the purposes of Regulation 2016/679 (“DPIA Guidelines”) that were adopted on April 4, 2017. CIPL’s Comments follow its December 2016 white paper on Risk, High Risk, Risk Assessments and Data Protection Impact Assessments under the GDPR, which CIPL had submitted to the Working Party as formal initial input to its development of DPIAs and “high-risk” guidance.

With just under one year to go before the EU General Data Protection Regulation (“GDPR”) becomes law across the European Union, the UK Information Commissioner’s Office (“ICO”) has continued its efforts to help businesses prepare for the new law. The ICO also has taken steps to address its own role post-Brexit.

On May 26, 2017, the Belgian Privacy Commission (the “Belgian DPA”) published its Annual Activity Report for 2016 (the “Annual Report”) highlighting its main accomplishments from the past year.

On May 29, 2017, a high-level EU Commission official and Politico reported that the primary objective of the first annual joint review of the EU-U.S. Privacy Shield (“Privacy Shield”) is not to obtain more concessions from the U.S. regarding Europeans’ privacy safeguards, but rather to monitor the current U.S. administration’s work and steer U.S. privacy debates to prevent privacy safeguards from deteriorating. On March 31, 2017, the EU Commissioner for Justice, Věra Jourová, announced that the joint review will take place in September 2017.

On May 24, 2017, the Bavarian Data Protection Authority (“DPA”) published a questionnaire to help companies assess their level of implementation of the EU General Data Protection Regulation (“GDPR”).  

On April 12, 2017, the Centre for Information Policy Leadership (“CIPL”) at Hunton & Williams LLP issued a discussion paper on Certifications, Seals and Marks under the GDPR and Their Roles as Accountability Tools and Cross-Border Data Transfer Mechanisms (the “Discussion Paper”). The Discussion Paper sets forth recommendations concerning the implementation of the EU General Data Protection Regulation’s (“GDPR’s”) provisions on the development and use of certification mechanisms. The GDPR will become effective on May 25, 2018. The EU Commission, the Article 29 Working Party, individual EU data protection authorities (“DPAs”) and other stakeholders have begun to consider the role of GDPR certifications and how to develop and implement them. CIPL’s Discussion Paper is meant as formal input to that process.

On April 4, 2017, the Article 29 Working Party (“Working Party”) adopted its draft Guidelines on Data Protection Impact Assessment and determining whether processing is “likely to result in a high risk” for the purposes of Regulation 2016/679 (the “Guidelines”). The Guidelines aim to clarify when a data protection impact assessment (“DPIA”) is required under the EU General Data Protection Regulation (“GDPR”). The Guidelines also provide criteria to Supervisory Authorities (“SAs”) to use to establish their lists of processing operations that will be subject to the DPIA requirement.

On April 4, 2017, the Article 29 Working Party (the “Working Party”) adopted an Opinion on the Proposed Regulation of the European Commission for the ePrivacy Regulation (the “Proposed ePrivacy Regulation”). The Proposed ePrivacy Regulation is intended to replace the ePrivacy Directive and to increase harmonization of ePrivacy rules in the EU. A regulation is directly applicable in all EU Member States, while a directive requires transposition into national law. 

On April 5, 2017, the Article 29 Working Party (“Working Party”) adopted the final versions of its guidelines (the “Guidelines”) on the right to data portability, Data Protection Officers (“DPOs”) and Lead Supervisory Authority (“SA”), which were first published for comment in December 2016. The final publication of these revised guidelines follows the public consultation which ended in February 2017.

On March 28, 2017, the French Data Protection Authority (“CNIL”) published its Annual Activity Report for 2016 (the “Report”) and released its annual inspection program for 2017.

On March 15, 2017, the French data protection authority (the “CNIL”) published a six step methodology and tools for businesses to prepare for the EU General Data Protection Regulation (“GDPR”) that will become applicable on May 25, 2018.

On March 2, 2017, the UK Information Commissioner’s Office (“ICO”) published draft guidance regarding the consent requirements of the EU General Data Protection Regulation (“GDPR”). The guidance sets forth how the ICO interprets the GDPR’s consent requirements, and its recommended approach to compliance and good practice. The ICO guidance precedes the Article 29 Working Party’s guidance on consent, which is expected in 2017.

On March 21, 2017, Hunton & Williams is pleased to host an in-person seminar in its London office featuring seasoned cybersecurity practitioners. Drawing from deep experience in their respective fields, the panel members will discuss the implications of the EU General Data Protection Regulation’s breach notification obligations in the context of a state-of-the-art cyber attack simulation. In doing so, the panelists will share best practices to help protect organizations in the event of a cyber attack.

Hunton & Williams LLP, in coordination with the U.S. Chamber of Commerce, recently issued a series of recommendations to enhance the effectiveness of data privacy regulators. The report, Seeking Solutions: Attributes of Effective Data Protection Authorities, identifies seven key attributes of data protection authorities (“DPAs”) that contribute to effective data protection governance. The report also explores how the level of effectiveness varies based on differences in the structure, roles and resources of a DPA.

On March 1, 2017, Hunton & Williams senior consultant attorney Rosemary Jay presented evidence on the data protection reform package and the impact of Brexit to the UK Parliament’s House of Lords EU Home Affairs Sub-Committee meeting. 

On February 21, 2017, Sweet & Maxwell published a Guide to the General Data Protection Regulation, written by Hunton & Williams senior consultant attorney Rosemary Jay. The book was released as a companion to Data Protection Law and Practice.

On February 23, 2017, the French Data Protection Authority (“CNIL”) launched an online public consultation on three topics identified by the Article 29 Working Party (“Working Party”) in its 2017 action plan for the implementation of the EU General Data Protection Regulation (“GDPR”). The three topics are consent, profiling and data breach notification.

On February 20, 2017, the Article 29 Working Party (“Working Party”) issued a template complaint form and Rules of Procedure that clarify the role of the EU Data Protection Authorities (“DPAs”) in resolving EU-U.S. Privacy Shield-related (“Privacy Shield”) complaints.

On February 15, 2017, the Centre for Information Policy Leadership (“CIPL”) at Hunton & Williams LLP submitted two sets of formal comments to the Article 29 Working Party (the “Working Party”). CIPL commented on the Guidelines for identifying a controller or processor’s lead supervisory authority (“Lead Authority Guidelines”), and on the Guidelines on the right to data portability (“Data Portability Guidelines”). Both were adopted by the Working Party on December 13, 2016, for public consultation. 

On February 15, 2017, the European Data Protection Supervisor (“EDPS”) published its Priorities for 2017 (the “EDPS Priorities”). The EDPS Priorities consist of a note listing the strategic priorities and a color-coded table listing the European Commission’s proposals that require the EDPS’ attention, sorted by level of priority.

On March 6 and 7, 2017, the Centre for Information Policy Leadership (“CIPL”) at Hunton & Williams LLP and over 100 public and private sector participants in CIPL’s GDPR Implementation Project will convene in Madrid, Spain, for CIPL’s third major GDPR implementation workshop.

On February 1, 2017, Matt Hancock, the UK Government Minister responsible for data protection, was questioned by the House of Lords committee on the UK’s implementation plan of the EU General Data Protection Regulation (“GDPR”) in the context of the UK’s looming exit from the EU. In responding to the questioning, Hancock revealed further details into the UK Government’s position on implementing the GDPR into UK law.

On February 2, 2017, the UK government published a white paper entitled The United Kingdom’s exit from and new partnership with the European Union (the “white paper”). The white paper strikes a conciliatory tone, making it clear that the UK intends to maintain close ties with the European Union and its 27 remaining Member States after Brexit. A large portion of the white paper is devoted to discussing the issues at the heart of the 2016 Brexit referendum, such as immigration controls, continuing trade with the EU and the protection of individuals’ rights conferred under EU law. Among the rights addressed is the free flow of personal data between the UK and the EU.

On January 31, 2017, the Times of London reported that UK Prime Minister Theresa May plans to invoke Article 50 of the Treaty on European Union on March 9, 2017, meaning that formal Brexit negotiations with the EU could begin thereafter. This coincides with a two-day European Council summit in Malta which the leaders of all 28 EU Member States will be attending. The report in the Times of London states that the government informed the House of Lords yesterday that it intends to secure the approval of the European Union (Notification of Withdrawal) Bill (the “Bill”)—which would give the Prime Minister the legislative power to trigger Article 50—on March 7, 2017, just two days before the summit.

On January 25, 2017, President Trump issued an Executive Order entitled “Enhancing Public Safety in the Interior of the United States.” While the Order is primarily focused on the enforcement of immigration laws in the U.S., Section 14 declares that “Agencies shall, to the extent consistent with applicable law, ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.” This provision has sparked a firestorm of controversy in the international privacy community, raising questions regarding the Order’s impact on the Privacy Shield framework, which facilitates lawful transfers of personal data from the EU to the U.S. While political ramifications are certainly plausible from an EU-U.S. perspective, absent further action from the Trump Administration, Section 14 of the Order should not impact the legal viability of the Privacy Shield framework.

On January 24, 2017, the UK Supreme Court handed down its judgment in the case of R (on the application of Miller and another) (Respondents) v. Secretary of State for Exiting the European Union (Appellant) [2017] UKSC 5. The case concerned the process to be followed to effect the UK’s withdrawal from the European Union and, in particular, whether the UK government may commence the UK’s withdrawal using executive powers, or whether Parliamentary approval is required. The Supreme Court held, by majority, that the UK government cannot commence the UK’s withdrawal from the EU without the approval of Parliament.

On January 10, 2017, the European Commission published a communication addressed to the European Parliament and European Council on Exchanging and Protecting Personal Data in a Globalized World (the “Communication”). The Communication aims to facilitate commercial data flows and foster law enforcement cooperation. In the Communication, the European Commission states that it will:

On January 11, 2017, the Swiss Federal Data Protection and Information Commissioner announced that it has reached an agreement with the U.S. Department of Commerce on a new Swiss-U.S. Privacy Shield framework (the “Swiss Privacy Shield”), which will allow companies to legally transfer Swiss personal data to the U.S. The Swiss Privacy Shield will replace the U.S.-Swiss Safe Harbor framework, and according to the Swiss government’s announcement, will “apply the same conditions as the European Union, which set up a comparable system with the U.S. last summer,” referring ...

On January 10, 2017, the European Commission announced the final elements of its long-awaited “digital single market” strategy for Europe. The announcement includes two new proposed EU regulations as well as a European Commission Communication, as described below.

On December 21, 2016, the Centre for Information Policy Leadership (“CIPL”) at Hunton & Williams LLP issued a white paper on Risk, High Risk, Risk Assessments and Data Protection Impact Assessments under the GDPR (the “White Paper”). The White Paper sets forth guidance and recommendations concerning the interpretation and implementation of the EU General Data Protection Regulation’s (“GDPR's”) provisions relating to risk and risk assessment, which will become applicable on May 25, 2018. While risk assessments already are required under the EU Data Protection Directive, the GDPR broadens the relevance of risk and risk assessment by explicitly and comprehensively incorporating a risk-based approach to data protection.

On December 21, 2016, a judgment by the Court of Justice for the European Union (the “CJEU”) that clarifies EU surveillance laws has called into question the legality of the UK’s Investigatory Powers Act 2016. The decision in Case C-698/15 could have significant implications on the UK’s chances of securing “adequacy” status for its data protection regime post-Brexit.

On December 15, 2016, the Article 29 Working Party (“Working Party”) issued a press release announcing its December 13, 2016, adoption and release of three sets of guidelines and FAQs on key implementation issues under the EU General Data Protection Regulation (“GDPR”):

On December 12, 2016, Politico reported that the European Commission intends to replace the e-Privacy Directive with a Regulation. The planned shift from a Directive to a Regulation has important legal consequences under EU law, as it means that instead of creating a floor upon which EU Member States may base the creation of their own versions of the law, a Regulation will create a harmonized set of requirements at the EU level that are directly applicable in the Member States.

On November 30, 2016, the Centre for Information Policy Leadership (“CIPL”) at Hunton & Williams LLP issued a white paper on The One-Stop-Shop and the Lead DPA as Co-operation Mechanisms in the GDPR (the “White Paper”). The White Paper sets forth guidance and recommendations concerning the interpretation and implementation of the GDPR’s provisions relating to the One-Stop-Shop (“OSS”) and lead DPA, which will become effective on May 25, 2018.

On November 19, 2016, the French government enacted a bill creating a legal basis for class actions against data controllers and processors resulting from data protection violations. The bill, which aims to facilitate access to justice for French citizens, establishes a general class action regime and includes specific provisions regarding data protection violations. These provisions go beyond the class action provisions already in place for consumers by adding, within the context of the French Data Protection Act of 1978 (“Loi Informatique et Libertés”), a right to class actions for data protection violations regardless of industry sector.

On November 23, 2016, Bloomberg BNA reported that the Hague Administrative Court in the Netherlands upheld a decision by the Dutch Data Protection Authority that WhatsApp was in breach of the Dutch Data Protection Act (the “Act”) on account of its alleged failure to identify a representative within the country responsible for compliance with the Act, despite the processing of personal data of Dutch WhatsApp users on Dutch smartphones. WhatsApp reportedly faces a fine of €10,000 per day up to a maximum of €1 million ...

Recently, German Chancellor Angela Merkel spoke at Germany’s 10th National IT Summit, and called for EU Member States to take a pragmatic approach to the application of EU data protection laws. Chancellor Merkel warned that a restrictive interpretation of data protection laws risks undermining the development of big data projects in the EU. Ahead of the introduction of the General Data Protection Regulation throughout the EU in May 2018, Merkel argued that, more than simply preventing the excesses of personal data use, data protection law should serve to enable emerging data ...

On November 17, 2016, the Centre for Information Policy Leadership (“CIPL”) at Hunton & Williams LLP issued a white paper on Ensuring the Effectiveness and Strategic Role of the Data Protection Officer under the General Data Protection Regulation (the “White Paper”). The White Paper sets forth guidance and recommendations concerning the interpretation and implementation of the GDPR’s provisions relating to the role of the Data Protection Officer (“DPO”).

On November 18, 2016, the Argentina Data Protection Agency (“DPA”) announced that it had issued DNPDP Disposition 60 –  a new regulation on international transfers of personal data (the “Regulation”). 

On November 16, 2016, the UK Investigatory Powers Bill (the “Bill”) was approved by the UK House of Lords. Following ratification of the Bill by Royal Assent, which is expected before the end of 2016, the Bill will officially become law in the UK. The draft of the Bill has sparked controversy, as it will hand significant and wide-ranging powers to state surveillance agencies, and has been strongly criticized by some privacy and human rights advocacy groups. 

On November 9, 2016, the Centre for Information Policy Leadership (“CIPL”) at Hunton & Williams LLP and AvePoint released the results of a joint global survey launched in May 2016 concerning organizational preparedness for implementing the EU General Data Protection Regulation (“GDPR”). The GDPR replaces Directive 95/46/EC and will become applicable in May 2018.

Join us at the International Association of Privacy Professionals (“IAPP”) Data Protection Congress in Brussels, November 9-10, 2016.

On October 24, 2016, the UK Secretary of State for Culture, Media and Sport confirmed that the UK will implement the EU General Data Protection Regulation (“GDPR”) by May 2018. The UK Information Commissioner, Elizabeth Denham, has officially welcomed this confirmation and said that the UK must stay on top of the continuing digital economy evolution. The Information Commissioner’s Office (“ICO”) will publish a revised timeline setting out what areas of guidance the ICO will be prioritizing over the next six months.

On November 3, 2016, the High Court of England and Wales handed down its judgment in the case of R (on the application of Santos) v. Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin). This high-profile and closely followed case concerns the process that must be followed to trigger Britain’s exit from the European Union. In particular, the question before the court was whether the Prime Minister can wield her executive powers to trigger the exit or if she needs Parliamentary approval before doing so. In reaching its decision, the Court ruled in favor of the claimants, meaning that the Prime Minister does not have the power to trigger Britain’s exit from the European Union, but instead must first obtain Parliamentary approval.

On October 20, 2016, the Centre for Information Policy Leadership (“CIPL”) at Hunton & Williams LLP hosted a side workshop at the International Conference of Data Protection & Privacy Commissioners focused on transparency and risk assessment, entitled “The Role of Risk Assessment and Transparency in Enabling Organizational Accountability in the Digital Economy.” The workshop was led by Bojana Bellamy, CIPL’s President, and featured contributions from many leaders in the field, including the UK ICO, Belgium and Hong Kong’s Privacy Commissioners, and counsel and privacy officers from several multinational companies.

On October 7, 2016, the French Digital Republic Bill (the “Bill”) was enacted after a final vote from the Senate. The Bill aligns the French legal data protection framework with the EU General Data Protection Regulation (“GDPR”) requirements before the GDPR becomes applicable in May 2018.

A recent update on the Court of Justice of the European Union’s (the “CJEU’s”) website has revealed that Digital Rights Ireland, an Irish privacy advocacy group, has filed an action for annulment against the European Commission’s adequacy decision on the EU-U.S. Privacy Shield (the “Privacy Shield”).

Earlier this month, at a meeting of the Article 31 Committee, the European Commission (“Commission”) unveiled two draft Commission Implementing Decisions that propose amendments to the existing adequacy decisions and decisions on EU Model Clauses.

On October 7, 2016, the Article 29 Working Party (the “Working Party”) published a summary of the discussions that took place at its “Fablab” workshop entitled GDPR/from concepts to operational toolbox, DIY, which took place on July 26, 2016, in Brussels.

On October 19, 2016, the Court of Justice of the European Union (the “CJEU”) issued its judgment in Patrick Breyer v. Bundesrepublik Deutschland, following the Opinion of Advocate General Manuel Campos Sánchez-Bordona on May 12, 2016. The CJEU followed the Opinion of the Advocate General and declared that a dynamic IP address registered by a website operator must be treated as personal data by that operator to the extent that the user's Internet service provider ("ISP") has - and may provide - additional data that in combination with the IP address that would allow for the identification of the user.

Recently, the Centre for Information Policy Leadership (“CIPL”) at Hunton & Williams LLP, a privacy and information policy think tank based in Brussels, London and Washington, D.C., and Telefónica, one of the largest telecommunications company in the world, issued a joint white paper on Reframing Data Transparency (the “white paper”). The white paper was the outcome of a June 2016 roundtable held by the two organizations in London, in which senior business leaders, Data Privacy Officers, lawyers and academics discussed the importance of user-centric transparency to the data driven economy.

In September, the Centre for Information Policy Leadership (“CIPL”) held its second GDPR Workshop in Paris as part of its two-year GDPR Implementation Project. The purpose of the project is to provide a forum for stakeholders to promote EU-wide consistency in implementing the GDPR, encourage forward-thinking and future-proof interpretations of key GDPR provisions, develop and share relevant best practices, and foster a culture of trust and collaboration between regulators and industry.  

On October 3, 2016, at the Paris Motor Show, the French Data Protection Authority ("CNIL") reported on the progress of a new compliance pack on connected vehicles. The work was launched on March 23, 2016, and should be finalized in Spring 2017.

On September 27, 2016, Cloud Infrastructure Services Providers in Europe (“CISPE”) published its Data Protection Code of Conduct (the “Code”). CISPE, a relatively new coalition of more than 20 cloud infrastructure providers with operations in Europe, has focused the Code on transparency and compliance with EU data protection laws.

On September 23, 2016, the European Data Protection Supervisor (the “EDPS”) released Opinion 8/2016 (the “Opinion”) on the coherent enforcement of fundamental rights in the age of big data. The Opinion updates the EDPS’ Preliminary Opinion on Privacy and Competitiveness in the Age of Big Data, first published in 2014, and provides practical recommendations on how the EU’s objectives and standards can be applied holistically across the EU institutions. According to the EDPS, the Digital Single Market Strategy presents an opportunity for a coherent approach with respect to the application of EU rules on data protection, consumer protection, antitrust enforcement and merger control. In addition, the EDPS calls for greater dialogue and cooperation between data protection, consumer and competition authorities in order to protect the rights and interests of individuals, including the rights to privacy, freedom of expression and non-discrimination.

On September 27, 2016, the French Data Protection Authority (“CNIL”) announced the adoption of two new decisions, Single Authorizations AU-052 and AU-053, that will now cover all biometric access control systems in the workplace. These two new decisions repeal and replace the previous biometric decisions adopted by the CNIL and lay down the CNIL’s new position on biometric systems used to control access to the premises, software applications and/or devices in the workplace.  

On September 23, 2016, the French Data Protection Authority ("CNIL") published the results of the Internet sweep on connected devices. The sweep was conducted in May 2016 to assess the quality of the information provided to users of connected devices, the level of security of the data flows and the degree of user empowerment (e.g., user’s consent and ability to exercise data protection rights).

On September 16, 2016, the Belgian Data Protection Authority (the “Privacy Commission”) published a 13-step guidance document (in French and Dutch) to help organizations prepare for the EU General Data Protection Regulation (“GDPR”).

The 13 steps recommended by the Privacy Commission are summarized below.