Privacy & Information Security Law Blog

On February 24, 2023, following public consultation, the European Data Protection Board (EDPB) published the following three sets of adopted guidelines:

1. Guidelines on the Interplay between the application of Article 3 and the provisions on international transfers as per Chapter V GDPR (05/2021) (final version);
2. Guidelines on certification as a tool for transfers (07/2022) (final version); and
3. Guidelines on deceptive design patterns in social media platform interfaces (03/2022) (final version).

On February 20, 2023, in the case of Experian Limited v The Information Commissioner, the First-Tier Tribunal in the UK (the “Tribunal”) ruled on the ICO’s action to require Experian to make changes to how it processes personal data for direct marketing purposes. While the Tribunal supported the ICO in certain respects, it largely ruled in favor of Experian and issued a Substituted Decision Notice, as detailed further below.

On February 14, 2023, in a Draft Motion for a Resolution on the adequacy of the protection afforded by the proposed EU-U.S. Data Privacy Framework (the “Framework”), the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (the “Committee”) urged the European Commission not to adopt adequacy based on the Framework, on the basis that it “fails to create actual equivalence” with the EU in the level of data protection that it provides.

On February 9, 2023, the Court of Justice of the European Union (“CJEU”) issued its judgment in the X-FAB Dresden case (C-453/21). In this decision, the CJEU clarified the criteria for assessing whether a conflict of interest exists between the Data Protection Officer (“DPO”) position, and other tasks or duties assigned to the DPO.

On January 26, 2023, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth responded to a call for input from the UK’s Digital Regulation Cooperation Forum (DRCF) on its workplan for 2023 – 2024.

On January 18, 2023, the European Data Protection Board (“EDPB”) published its Report on the work undertaken by the Cookie Banner Taskforce (the “Report”).

On January 12, 2023, the French Data Protection Authority (the “CNIL”) announced a €5,000,000 fine for the social network TikTok for violations of applicable cookie rules. The fine was imposed at the end of 2022.

On January 4, 2023, the Irish Data Protection Commission (“DPC”) announced the conclusion of two inquiries into the data processing practices of Meta Platforms, Inc. (“Meta”) with respect to the company’s Instagram and Facebook platforms. As a result of the investigations, the DPC fined Meta a combined €390 million for breaches of the EU General Data Protection Regulation (“GDPR”) and, following consultation with the European Data Protection Board (“EDPB”), notably held that Meta can no longer rely on the GDPR’s “performance of a contract” legal basis for processing personal data in the behavioral advertising context, a decision that has broad implications for publishers engaged in behavioral advertising in the EU.

On January 10, 2023, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth  responded to a call for public comments from the European Data Protection Board (“EDPB”) regarding their Recommendations 1/2022 on the Application for Approval and on the elements and principles to be found in Controller Binding Corporate Rules (Art. 47 GDPR) (“Recommendations 1/2022”). The Recommendations 1/2022 are intended to bring existing Controller Binding Corporate Rules (“BCR-C”) in line with the GDPR and the Schrems II ruling.

On January 11, 2023, the Belgian Data Protection Authority (“Belgian DPA”) announced that it has approved the Interactive Advertising Bureau Europe’s (“IAB Europe”) action plan with respect to its Transparency and Consent Framework (“TCF”).

On December 29, 2022, the French Data Protection Authority (the “CNIL”) announced that it imposed an €8,000,000 fine on Apple for violations of the French rules on targeted advertising and the use of cookies and similar tracking technologies.

On December 20, 2022, the English High Court has granted the victim of a cyber attack a permanent injunction against cyber attackers whilst the victim organization maintains its anonymity. Generally, a claimant's identity is public in English court proceedings. Injunctions can be made against unknown and unidentifiable defendants enabling them to be granted against individuals who are acting in breach or threatening to commit a breach. 

On December 9, 2022, Hunton Andrews Kurth LLP London senior consultant attorney Rosemary Jay received the 2022 PICCASO Privacy Award for Achievement in recognition of her longstanding contributions to the data privacy industry.

On  December 15, 2022, the UK government and the Dubai International Financial Centre Authority (“DIFC”) issued a joint statement on the shared commitment to deepening the UK-DIFC data partnership. The statement explains that “[t]here are over 5,000 UK companies operating in the UAE, many of which depend on the free and secure flow of safe data across borders.” Further, the UK and the DIFC have strong links in the financial sector, following the DIFC’s establishment in 2004, with 16% of the DIFC’s financial services companies originally based in the UK.

On December 13, 2022, the European Commission launched the process for the adoption of an adequacy decision for the EU-U.S. Data Privacy Framework. If adopted, the long-awaited adequacy decision will provide EU companies transferring personal data to the U.S. with an additional mechanism to legitimize their transfers.

An adequacy decision would foster trans-Atlantic data flows and address the concerns raised by the Court of Justice of the European Union (“CJEU”) judgment in the Schrems II case.

On December 12, 2022, at the “POLITICO Live” event presented in cooperation with Hunton Andrews Kurth LLP’s Centre for Information Policy Leadership ("CIPL")—titled “EU-U.S. Data Flows: Game Changer or More Legal Uncertainty?”—featured speakers from both sides of the Atlantic optimistic that the new EU-U.S. Data Privacy Framework will withstand an anticipated legal challenge.

On November 25, 2022, Ireland’s Data Protection Commission (“DPC”) released a decision fining Meta Platforms, Inc. (“Meta”) €265 million for a 2019 data leak involving the personal information of approximately 533 million Facebook users worldwide.

The UK Information Commissioner’s Office (“ICO”) recently published a package of detailed guidance and checklists for direct marketing activities. The ICO’s new webpage on direct marketing now includes various resources, including specific guidance for SMEs, business-to-business marketing, and organizations using the marketing services of data brokers, as well as direct marketing FAQs and checklists, and a training module for businesses.

On November 22, 2022, the Court of Justice of the European Union (“CJEU”) determined in a preliminary ruling that the general public’s access to information on beneficial ownership constitutes a serious interference with the fundamental rights to respect for private life and to the protection of personal data, enshrined in Articles 7 and 8 of the Charter of Fundamental Human Rights (the “Charter”).

On November 15, 2022, the Italian Supreme Court held that an Italian court or competent data protection authority has jurisdiction to issue a global delisting order. A delisting order requires a search engine to remove certain search results about individuals if the data subject’s privacy interests prevail over the general right to expression and information, and the economic interest of the search engine. The case was brought by an Italian individual, who requested a worldwide delisting order, concerning all versions of the search engine, due to potential damage to the applicant's professional interests outside of the European Union.

On November 30, 2022, the UK government confirmed that the Network and Information Systems (“NIS”) Regulations 2018 (“NIS Regulations”) will be strengthened to protect essential and digital services against cyber attacks. The changes bring providers of outsourced IT and managed service providers (“MSPs”) into scope of the NIS Regulations. The announcement comes in response to a public consultation held in January this year.

On November 25, 2022, the UK Information Commissioner’s Office (“ICO”) and the UK’s communications regulator, Ofcom, issued a joint statement setting out how they intend to work together to “ensure coherence between the data protection and the new online safety regimes.” The regulators noted that the statement is primarily intended for online service providers that are likely to be regulated under the online safety regime, but it also will be of interest to other stakeholders as an indication of their joint direction.

On November 23, 2022, the UK government’s Department for Digital, Culture, Media & Sport (“DCMS”) announced that it had completed its assessment of South Korea’s personal data legislation, and concluded that sufficiently strong privacy laws are in place to protect UK personal data transferred to South Korea while upholding the rights and protections of UK citizens.

Kochhar & Co. reports that, on November 18, 2022, the Government of India (“Government”) released the long-awaited fourth draft of India’s proposed privacy law, now renamed the Digital Personal Data Protection Bill.

Terms and Application

The draft law uses terminology similar to past versions: the data controller is called the “data fiduciary,” the data subject is called the “data principal,” and personal information is referred to as “personal data.” There is no separate category of sensitive personal data.   

On November 17, 2022, the UK data protection regulator, the Information Commissioner’s Office (“ICO”), published updated guidance on international transfers that includes a new section on transfer risk assessments (“TRAs”) and a TRA tool.

In its statement regarding the updated guidance, the ICO describes the TRA guidance as “an alternative approach to the one put forward by the European Data Protection Board” and says its aim is “to find an alternative, achievable approach delivering the right protection for the people the data is about, whilst ensuring that the assessment is reasonable and proportionate.”

On November 1, 2022, the Digital Markets Act (the “DMA”) entered into force. The DMA introduces new rules for certain core platforms services acting as “gatekeepers” in the digital sector (including search engines, social networks, online advertising services, cloud computing, video-sharing services, messaging services, operating systems and online intermediation services). The DMA also aims to prevent such platforms from imposing unfair conditions on businesses and consumers, and to ensure the openness of important digital services.

SHIFT Counsellors at Law reports from Indonesia that The People’s Representative Council of the Republic of Indonesia has ratified Indonesia’s draft law on personal data protection. The draft law came into effect on October 17, 2022. The law, which is partly modeled on the EU General Data Protection Regulation, is Indonesia’s first “umbrella regulation” on personal data protection. The law will provide certain protections to Indonesian citizens’ data, and provide more legal certainty to parties processing such data.

Read SHIFT Counsellors’ article on the ...

On  November 2, 2022, the ICO issued to the UK Department for Education (“DfE”) a formal reprimand following an investigation into the sharing of personal data stored on the Learning Records Service (“LRS”), a database which provides a record of pupils’ qualifications that the DfE has overall responsibility for. The investigation found that the DfE’s poor due diligence meant the LRS database was being used by Trust Systems Software UK Ltd (trading as Trustopia), a third party screening firm, to check whether people opening online gambling accounts were 18. Trustopia was found to have had access from September 2018 to January 2020, during which it performed over 20,000 searches on children whose personal data was in the LRS database.

On October 18, 2022, the European Commission published a report, titled Information Frictions and Public Policies: Approaching the Regulation and Supervision of Decentralized Finance (“DeFi”) (the “Report”). The Report discusses the need to adapt existing policy frameworks to account for the change brought about by DeFi to the underlying information structure upon which financial services are provided. Unlike traditional finance, DeFi applications provide financial services based on blockchain technology, i.e., without requiring any intermediary agent and instead relying on automated protocols that are encoded in public digital contracts universally accessible and maintained by an open pool of pseudonymous miners.

On October 9, 2022, TC260 of China issued the Information Security Technology - Basic Security Requirements for Pre-installed App of Smartphones for public comment ending December 6, 2022 (the “Guidelines”). The Guidelines are applicable to smartphone manufacturers and also provide reference to relevant regulators and third-party assessments.

On September 23, 2022, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted a response to the UK Department for Digital, Culture, Media & Sport (“DCMS”) on its Consultation on establishing a pro-innovation approach to regulating AI (the “Response”).

On October 24, 2022, the UK Information Commissioner’s Office (“ICO”) issued a £4.4 million fine to Interserve Group Limited for failing to keep employee personal data secure, which violates Article 5(1)(f) and Article 32 of the EU General Data Protection Regulation (“GDPR”), during the period of March 2019 to December 2020. The ICO determined that such violations rendered Interserve vulnerable to the cyber attack which took place between March 2020 and May 2020, affecting the personal data of up to 113,000 Interserve employees. The compromised data included contact details, national insurance numbers and bank account details, as well as special category data, including ethnic origin, religion, details of any disabilities, sexual orientation and health information.

On October 17, 2022, the French Data Protection Authority (the “CNIL”) imposed a €20 million fine on Clearview AI for unlawful use of facial recognition technology. The fine was imposed after the CNIL’s prior formal notice remained unaddressed by Clearview AI.

On October 12, 2022, the UK Information Commissioner's Office (“ICO”) launched a public consultation on its draft guidance on employers’ obligations when monitoring at work (“Draft Guidance”). In addition, the ICO has published an impact scoping document, which outlines some of the context and potential impacts of the Draft Guidance (“Impact Scoping Document”).

On October 4, 2022, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth published a white paper outlining 10 key recommendations for regulating artificial intelligence (“AI”) in Brazil (the "White Paper"). CIPL prepared the White Paper to assist the special committee of legal experts established by Federal Senate of Brazil (the “Senate Committee”) as it works towards an AI framework in Brazil.

On October 7, 2022, President Biden signed Executive Order on Enhancing Safeguards for United States Signals Intelligence Activities, which provides a new framework for legal data transfers between the European Union and the United States. The legal basis for transatlantic data transfers has been uncertain since 2020, when the European Court of Justice (“ECJ”) declared the previous framework, the EU-U.S. Privacy Shield, invalid under EU law. 

On October 3, 2022, the U.S. Department of Justice (“DOJ”) announced that the agreement between the U.S. Government and the UK Government on Access to Electronic Data for the Purpose of Countering Serious Crime (the “CLOUD Act Agreement”) entered into force, effective the same day. The CLOUD Act Agreement, which is authorized by the U.S. Clarifying Lawful Overseas Use of Data (“CLOUD”) Act, is the first of its kind and will allow each country’s investigators to gain access to data held by service providers in the other country, for the purpose of combating serious crime. According to DOJ, this “will greatly enhance the ability of the United States and the United Kingdom to prevent, detect, investigate and prosecute serious crime, including terrorism, transnational organized crime, and child exploitation, among others.”

Background

On September 15, 2022, the European Commission presented its proposal for a Regulation on horizontal cybersecurity requirements for products with digital elements (the “Cyber Resilience Act”). According to the European Commission, the Cyber Resilience Act will be the first EU-wide legislation introducing “cybersecurity requirements for products with digital elements, throughout their whole lifecycle.”

On September 26, 2022, the UK Information Commissioner’s Office (“ICO”) confirmed in a statement that it issued TikTok Inc. and TikTok Information Technologies UK Limited (together, “TikTok”) a notice of intent to potentially impose a £27 million fine for failing to protect children’s privacy. This notice of intent follows an investigation by the ICO finding that TikTok may have breached UK data protection law between May 2018 and July 2020 by failing to protect children’s privacy when using the TikTok platform.

On September 21, 2022, Denmark’s data protection authority Datatilsynet (“Danish DPA”) announced its guidance that Google Analytics, Google’s audience measurement tool, is not compliant with the EU General Data Protection Regulation (“GDPR”), as the tool transfers personal data to the United States which, following Schrems II, does not offer an adequate level of data protection.

On September 20, 2022, Indonesia’s parliament ratified the Personal Data Protection Act (the “Act”). The Act is the first comprehensive data protection law to be enacted in Indonesia and will come into effect on a date set by the Minister of State Secretariat. Organizations subject to the Act will have two years to come into compliance with the Act’s requirements.

On September 5, 2022, the Irish Data Protection Commissioner (the “DPC”) imposed a €405,000,000 fine on Instagram (a Meta-owned social media platform) for violations of the EU General Data Protection Regulation’s (“GDPR’s”) rules on the processing of children’s personal data.

On July 7, 2022, the Cyberspace Administration of China (the “CAC”) issued the Measures on Security Assessment on Cross-border Transfer (the “Measures”), which became effective on September 1, 2022, and provide a six-month grace period to the relevant data handlers. On August 31, 2022, the CAC issued the Guidelines on Application for Security Assessment on Cross-border Transfer (the “Guidelines”), which further clarify certain issues and provide specific application documents for security assessments (including templates of application forms for security assessment on cross-border transfer and self-assessments report for risks of cross-border transfer).

On August 5, 2022, French AdTech company Criteo announced that it had received a report from the French Data Protection Authority (“CNIL”) on August 3, 2022, claiming various infringements of the EU General Data Protection Regulation (“GDPR”) and proposing to impose a €60,000,000 fine against Criteo. The proposed fine follows complaints filed by privacy NGO ‘Privacy International’ against Criteo.

In July 2022, Maria Ostashenko from ALRUD Law Firm reports that the Russian Parliament passed, and the President of the Russian Federation signed into law, major reforms in data protection and information governance. The reforms include:

• Significant changes to Federal Law No. 152-FZ on Personal Data, including the scope of its application, new rules for cross-border transfer of personal data, data breach notifications, and additional protections for data subjects;
• New amendments to the Unified Biometric System regulations;
• Establishment of a countersanction-information ...

Stephen Mathias from Kochhar & Co. reports that, on August 3, 2022, the Government of India withdrew the Indian Data Protection Bill (the “Bill”) that was pending before the Indian Parliament. As we previously reported, the Bill was expected to be tabled during the Monsoon session of Parliament, which commenced on July 18, 2022. While the Government was contemplating making certain changes to the existing Bill, it is now considering drafting fresh legislation, including a bill that addresses a broader range of issues in the digital ecosystem beyond data protection alone.

On July 24, 2022, the Financial Express published an article on Rajeev Chandrasekhar, the Indian Minister of State for Electronics and Information Technology, noting that the introduction of the Indian Data Protection Bill (the “Bill”) before Parliament will be delayed by a few months. The Bill was expected to be tabled during the Monsoon Session of Parliament, which commenced on July 18, 2022.

On July 7, 2022, the Irish Data Protection Commission (the “DPC”) sent a draft decision to other EU data protection authorities, proposing to block Meta’s transfers of personal data from the EU to the United States.

On June 30, 2022, the Cyberspace Administration of China (the “CAC”) issued a draft Provision on the Standard Contract for Cross-border Transfer of Personal Information (“Draft Provisions”) and a draft of the Standard Contract for Cross-border Transfer of Personal Information (“Standard Contract”) for public comments. Per Article 38 of the Personal Information Protection Law (“PIPL”), if the data handler is not required to conduct a government security assessment, it may choose either to conduct certification by a qualified third institution or to execute the Standard Contract for cross-border transfer of personal information. Certification might be more commonly used for cross-border transfer within a group, whereas the Standard Contract may be more popular under other scenarios of cross-border transfers.

On June 23, 2022, Italy’s data protection authority (the “Garante”) determined that a website’s use of the audience measurement tool Google Analytics is not compliant with the EU General Data Protection Regulation (“GDPR”), as the tool transfers personal data to the United States, which does not offer an adequate level of data protection. In making this determination, the Garante joins other EU data protection authorities, including the French and Austrian regulators, that also have found use of the tool to be unlawful.

On June 16, 2022, Industry Minister François-Philippe Champagne and Justice Minister David Lametti introduced the Digital Charter Implementation Act, 2022 (Bill C-27), a bill that would overhaul Canada’s existing legal framework for personal information protection in the private sector. In the Canadian government’s news release, Industry Minister Champagne stated that Bill C-27, if enacted, will “give businesses clear rules to support their efforts to innovate with data and will introduce a new regulatory framework for the responsible development of artificial intelligence systems, while recognizing the need to protect young people and their information.” Bill C-27 is similar to former Bill C-11, which died in the 2021 legislative session. 

On June 10, 2022, the Centre for Information Policy Leadership at Hunton Andrews Kurth published a white paper entitled “Local Law Assessments and Online Services – Refining the Approach to Beneficial and Privacy-Protective Cross-Border Data Flows A: Case Study from British Columbia.” The paper discusses recent developments in British Columbia that demonstrated a recognition by law- and policy-makers of the importance of cross-border data flows to an efficient and effective public sector.

On April 29, 2022, the National Information Security Standardization Technical Committee of China issued a draft version of the Cybersecurity Standard Practice Guidelines – Technical Specification on Certification of Personal Information Cross-border Transfer Activities (the “Guidelines”). The public comment period for the Guidelines closed May 13, 2022. The Guidelines establish the basic requirements for personal information protection certifications, which are one of four cross-border transfer mechanisms permitted under Article 38 of China’s Personal Information Protection Law (“PIPL”).

On May 12, 2022, the European Data Protection Board (“EDPB”) adopted Guidelines 04/2022 on the calculation of administrative fines under the EU General Data Protection Regulation (“GDPR”) (the “Guidelines”). The Guidelines are intended  to harmonize the methodology supervisory authorities (“SAs”) use when calculating the amount of a GDPR fine and provide illustrative examples to help organizations understand the calculation method.

On May 11, 2022, the French Data Protection Authority (the “CNIL”) published its Annual Activity Report for 2021 (the “Report”). The Report provides an overview of the CNIL’s enforcement activities in 2021. The report notably shows a significant increase in the CNIL’s activity.

On June 1, 2022, Thailand’s Personal Data Protection Act (“PDPA”) entered into force after three years of delays. The PDPA, originally enacted in May 2019, provides for a one-year grace period, with the main operative provisions of the law originally set to come into force in 2020. Due to the COVID-19 pandemic, however, the Thai government issued royal decrees to extend the compliance deadline to June 1, 2022. 

On May 10, 2022, as part of the Queen’s Speech, the UK government announced its intention to introduce a Data Reform Bill (the “Bill”). The UK government’s background and briefing notes to the Queen’s Speech state that the purpose of the Bill is to “take advantage of the benefits of Brexit to create a world class data rights regime…that reduces burdens on businesses, boosts the economy, helps scientists to innovate and improves the lives of people in the UK.”

On April 23, 2022, the European Commission announced that the European Parliament and EU Member States had reached consensus on the Digital Services Act (“DSA”), which establishes accountability standards for online platforms regarding illegal and harmful content.

On April 28, 2022, India issued new guidance relating to “information security practices, procedure, prevention, response and reporting of cyber incidents for Safe & Trusted Internet.” Notably, the guidance requires “service providers, intermediary, data centre, body corporate and Government organizations” to report cyber incidents to India's Computer Emergency Response Team (“CERT-In”) within six hours of noticing such incidents or being notified about such incidents. Before this guidance, notification of a cyber incident was required "within a reasonable time” after occurrence or discovery.

On April 21, 2022, the United States, Canada, Japan, Singapore, the Philippines, the Republic of Korea and Chinese Taipei published a declaration (the “Declaration”) establishing the Global Cross-Border Privacy Rules Forum (the “Global CBPR Forum”). The Global CBPR Forum will establish an international certification system based on the existing APEC Cross-Border Privacy Rules (“CBPR”) and Privacy Recognition for Processors (“PRP”) Systems, enabling participation beyond APEC member economies. The Global CBPR and PRP Systems, as they will be known, are designed to support the free flow of data and effective data protection, and enable interoperability with other privacy frameworks.

On February 28, 2022, the Emirate of Dubai enacted Law No. 4 of 2022 on the Regulation of Virtual Assets (“VAL”) and established the Dubai Virtual Assets Regulatory Authority (“VARA”). By establishing a legal framework for businesses related to virtual assets, including crypto assets and non-fungible tokens (NFTs), this landmark law reflects Dubai’s vision to become one of the leading jurisdictions for entrepreneurs and investors of blockchain technology.

On April 7, 2022, the European Data Protection Board (the “EDPB”) released a statement on the announcement of a new Trans-Atlantic Data Privacy Framework (the “Statement”).

On March 24, 2022, the European Union unveiled the final text of the Digital Markets Act (the “DMA”). The final text of the DMA was reached following trilogue negotiations between the European Commission, European Parliament and EU Member States (led by the French Presidency at the European Council). The final text retains essentially the same features as the previous draft text but does include some notable changes.

On March 25, 2022, the European Commission and United States issued a joint statement announcing an agreement in principle on a new Trans-Atlantic Data Privacy Framework (the “Joint Statement”).

On February 22, 2022, the European Data Protection Board (the “EDPB”) adopted its final Guidelines 04/2021 on Codes of Conduct as tools for transfers (the “Guidelines”), following a public consultation that took place in 2021.

On March 16, 2022, Google announced the launch of its new analytics solution, “Google Analytics 4.” Google Analytics 4 aims, among other things, to address recent developments in the EU regarding the use of analytics cookies and data transfers resulting from such use.

On February 23, 2022, the European Commission adopted a Proposal for a Regulation designed to harmonize rules on the fair access to and use of data generated in the EU across all economic sectors (the “Data Act”). The Data Act is intended to “ensure fairness in the digital environment, stimulate a competitive data market, open opportunities for data-driven innovation and make data more accessible for all.” Importantly, the Data Act applies to all data generated in the EU, not only personal data, which is regulated by the General Data Protection Regulation (“GDPR”).

On February 15, 2022, the French Data Protection Authority (the “CNIL”) published its enforcement priority topics for 2022. Each year, the CNIL conducts numerous investigations in response to complaints, data breach notifications and ongoing events, or based on previously established enforcement priorities.

On February 10, 2022, the French Data Protection Authority (the “CNIL”) ruled the transfer of EU personal data from the EU to the U.S. through the use of the Google Analytics cookie to be unlawful. In its decision, the CNIL held that an organization using Google Analytics was in violation of the GDPR’s data transfer requirements. The CNIL ordered the organization to comply with the GDPR, and to stop using Google Analytics, if necessary.

On February 2, 2022, the Litigation Chamber of the Belgian Data Protection Authority (the “Belgian DPA”) imposed a €250,000 fine against the Interactive Advertising Bureau Europe (“IAB Europe”) for several alleged infringements of the EU General Data Protection Regulation (the “GDPR”), following an investigation into IAB Europe Transparency and Consent Framework (“TCF”).

On February 2, 2022, the Secretary of State placed the UK Information Commissioner’s Office's (“ICO's ”) final international data transfer agreement (“IDTA”) and international data transfer addendum to the European Commission’s standard contractual clauses (“SCCs”) for international data transfers (“Addendum”) before the European Parliament. The IDTA and Addendum are set to come into force on March 21, 2022, but the ICO advises that they are of use to organizations immediately. The ICO also has stated that it intends to publish additional guidance on use of the IDTA and Addendum.

View the ICO’s final drafts of the IDTA and Addendum.

Organizations increasingly use artificial intelligence- (“AI”) driven solutions in their day-to-day business operations. Generally, these AI-driven solutions require the processing of significant amounts of personal data for the AI model’s own training, which often is not the purpose for which the personal data originally was collected. There is a clear tension between such further use of vast amounts of personal data and some of the key data protection principles outlined in EU privacy regulations. On the occasion of Data Privacy Day 2022, Hunton privacy attorneys ...

On November 14, 2021, the Cyberspace Administration of China (“CAC”) released for public comment its draft Regulations on Network Data Security Management (the “Draft Regulations”). The Draft Regulations are intended to implement portions of three existing laws – the Cybersecurity Law (“CSL”), the Data Security Law (“DSL”) and the Personal Information Protection Law (“PIPL”) (together, the “Three Laws”) – by providing guidance on certain provisions and establishing specific requirements for implementing certain principles contemplated in the Three Laws. In addition, the Draft Regulations add new requirements related to data processing activities. Once effective, the Draft Regulations will impose even greater compliance obligations on companies than the PIPL.

The Austrian data protection authority (the “Austrian DPA”) recently published a decision in a case brought against an Austrian website provider and Google by the non-governmental organization co-founded by privacy activist Max Schrems, None of Your Business (“NOYB”). The Austrian DPA ruled that the use of Google Analytics cookies by the website operator violates both Chapter V of the EU General Data Protection Regulation (“GDPR”), which establishes rules on international data transfers, and the Schrems II judgment of the Court of Justice of the European Union.

On January 12, 2022, the French Data Protection Authority (the “CNIL”) published guidelines on the re-use of personal data by data processors for their own purposes (such as product improvement or the development of new products and services) under the EU General Data Protection Regulation (“GDPR”) (the “Guidelines”). This post outlines key takeaways from the Guidelines.

On January 5, 2022, the European Data Protection Supervisor (“EDPS”) issued a decision against the European Parliament (“EP”). The case resulted from a complaint submitted by certain Members of the European Parliament (“MEPs”) who alleged that the Parliament’s use of cookies violated data protection law, including requirements regarding the transfer of personal data outside of the EU. The EDPS is responsible for overseeing compliance of data protection rules by the EU institutions.

On December 31, 2021, the French Data Protection Authority (the “CNIL”) imposed a €150,000,000 fine on Google and a €60,000,000 fine on Facebook (now Meta) for violations of French rules on the use of cookies.

In a letter addressed to certain members of the European Parliament (“MEPs”), European Commissioner for Justice Reynders refuted some of the criticism that has been raised against the Irish Data Protection Commissioner (“DPC”).

Stephen Mathias from Kochhar & Co. reports that on December 16, 2021, the Indian Joint Parliamentary Committee (the “JPC”) submitted its report on India’s draft Data Protection Bill (the “Bill”). The Bill is now likely to be passed by Parliament in its next session, beginning in February 2022, and likely will enter into force in the first half of 2022. In its report, the JPC recommended a phased approach to implementing the law, beginning with the appointment of various government officers, such as the Data Protection Authority (“DPA”), with full implementation of the law to be completed within 24 months. The JPC’s report also contained a revised draft of the Bill. Certain key aspects of the revised Bill are summarized below.

On December 20, 2021, the UK Information Commissioner’s Office (“ICO”) launched a public consultation on its regulatory approach. The consultation involves three separate documents – the ICO’s Regulatory Action Policy (“RAP”), Statutory Guidance on the ICO’s Regulatory Action, and Statutory Guidance on the ICO’s PECR Powers. The RAP sets forth the ICO’s risk-based approach to regulatory action and explains the factors the ICO considers before taking regulatory action, how the ICO works with other regulators, and enforces the legislation for which it is responsible. Together, the three documents illustrate how the ICO aims to enforce information rights for data subjects in the UK.

On December 15, 2021, the European Parliament adopted its position on the proposal for a Digital Markets Act (“DMA”), ahead of negotiations with the Council of the European Union.

The DMA introduces new rules for certain core platforms services acting as “gatekeepers,” (including search engines, social networks, online advertising services, cloud computing, video-sharing services, messaging services, operating systems and online intermediation services) in the digital sector and aims to prevent them from imposing unfair conditions on businesses and consumers and to ensure the openness of important digital services.

On December 17, 2021, the European Commission announced that it had adopted its adequacy decision on the Republic of Korea. The adequacy decision allows for the free flow of personal data between the EU and Korea, without any further need for authorization or additional transfer tool. The adequacy decision also covers transfers of personal data between public authorities.

On December 6, 2021, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth LLP published a white paper on “Bridging the DMA and the GDPR – Comments by the Centre for Information Policy Leadership on the Data Protection Implications of the Draft Digital Markets Act” (the “White Paper”).

On  November 27, 2021, the UAE Cabinet Office enacted its first federal Personal Data Protection Law (Federal Decree Law No. 45 of 2021, the “UAE Data Protection Law”). The UAE Data Protection Law will come into force on January 2, 2022.

On November 30, 2021, the European Commission issued a press release indicating that the European Parliament and the Council of the EU (i.e., representatives of EU Member States) reached political agreement on the proposed EU Data Governance Act. The political agreement now will be subject to final approval by the European Parliament and the Council of the EU.

On November 18, 2021, the European Data Protection Board (“EDPB”) released a statement on the Digital Services Package and Data Strategy (the “Statement”). The Digital Services Package and Data Strategy is a package composed of several legislative proposals, including the Digital Services Act (“DSA”), the Digital Markets Act (“DMA”), the Data Governance Act (“DGA”), the Regulation on a European approach for Artificial Intelligence (“AIR”) and the upcoming Data Act (expected to be presented shortly). The proposals aim to facilitate the further use and sharing of personal data between more public and private parties; support the use of specific technologies, such as Big Data and artificial intelligence (“AI”); and regulate online platforms and gatekeepers.

On November 22, 2021, according to India Today, the Indian Joint Parliamentary Committee (the “JPC”) responsible for reviewing the Personal Information Protection Bill 2019 (“PDPB”) issued its report on the proposed law. The report comes nearly two years after the bill was first referred to the JPC. The JPC’s report will likely be presented with the PDPB 2019 in the Winter Session of Parliament, which begins on November 29, 2021. If passed, the PDPB would constitute the first comprehensive data protection law in India ...

On November 19, 2021, the European Data Protection Board (“EDPB”) published its draft Guidelines 05/2021 (the “Guidelines”) on the interplay between the application of Article 3 of the EU General Data Protection Regulation (“GDPR”), which sets forth the GDPR’s territorial scope, and the GDPR’s provisions on international data transfers. The Guidelines aim to assist organizations subject to the GDPR in identifying whether a data processing activity constitutes an international data transfer under the GDPR, as the GDPR does not define the term.

On November 14, 2021, the U.S. Department of the Treasury announced a bilateral cybersecurity partnership with the Israeli Ministry of Finance “to protect critical financial infrastructure and emerging technologies” and combat the use of ransomware. The initiative includes the launch of a U.S.-Israeli Task Force on Fintech Innovation and Cybersecurity (the “Task Force”), which seeks to advance the twin goals of encouraging fintech innovation while protecting against cyber threats from nation-state and criminal actors.

On November 5, 2021, IAB Europe (“IAB EU”) announced that, in the coming weeks, the Belgian Data Protection Authority plans to share with other data protection authorities a draft ruling on the IAB EU Transparency & Consent Framework (“TCF”). The TCF is a GDPR consent solution built by IAB EU that has become a widely used approach to collecting consent to cookies under the GDPR. The draft ruling is expected to find that the TCF does not comply with the GDPR, in part because IAB EU acts as a controller, and the digital signals the TCF creates to capture individuals’ consent to cookies are personal data under the GDPR. Because IAB EU does not consider itself a controller with respect to the TCF, it does not currently comply with the GDPR’s controller obligations.

On November 10, 2021, the UK Supreme Court issued its long-awaited judgment in the Lloyd v Google case. The decision is expected to make it difficult in practice for a future class action lawsuit that is brought on behalf of a class of individuals who have not actively opted in to being represented by the lead claimant to proceed under UK law.

On November 8, 2021, law enforcement agencies in both the United States and European Union announced that a series of actions, including a number of arrests, were taken against the Russia-linked ransomware group, “REvil.” The U.S. Department of Justice (the “DOJ”) unsealed documents relating to an August indictment against two individuals in Dallas for alleged involvement in REvil ransomware attacks against several U.S. businesses. The European authorities, Europol, also announced that police in Romania and South Korea had arrested five people alleged to be REvil affiliates.

On October 28, 2021, the European Parliament’s Committee on Industry, Research and Energy adopted a draft directive on cybersecurity (“NIS2 Directive”). The NIS2 Directive will broaden the scope of the existing NIS Directive to apply to “important sectors,” such as waste management, postal services, chemicals, food, medical device manufacturers, digital providers and producers of electronics, in addition to “essential sectors.” The NIS2 Directive imposes specific cybersecurity requirements relating to incident response, supply chain security, encryption and vulnerability disclosure obligations. The NIS2 Directive also aims to establish better cooperation and information sharing between EU Member States, and create a common European vulnerability database.

On October 29, 2021, the Cyberspace Administration of China (“CAC”) released for public comment “Draft Measures on Security Assessment of Cross-border Data Transfer” (“Draft Measures”). The CAC, in its third legislative attempt to build a cross-border data transfer mechanism in China, issued the Draft Measures three days before the November 1, 2021 effective date of the Personal Information Protection Law (“PIPL”).

On October 13, 2021, the European Data Protection Board (“EDPB”) adopted Guidelines 10/2020 on restrictions under Article 23 of the EU General Data Protection Regulation (“GDPR”) (the “Guidelines”) following public consultation. Article 23 of the GDPR permits EU Member States to impose restrictions on data subject rights as long as the restrictions respect the essence of the fundamental rights and freedoms of individuals, and are necessary and proportionate measures in a democratic society to safeguard, for example, national security, defense or public security. The data subject rights to which the restrictions may apply are those set out in Articles 12-22 (e.g., rights of access, erasure), Article 34 (communication of a data breach to individuals) and Article 5 (the data processing principles) to the extent that its provisions correspond to data subject rights.

On September 29, 2021, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth published a paper on the Draft ePrivacy Regulation (“ePR”), in the context of the Trilogue Discussions between the EU Commission, EU Council and EU Parliament (the “Paper”).

The Irish Data Protection Commissioner (“DPC”) has submitted a draft decision on Facebook Ireland Limited’s (“Facebook”) data protection compliance to other European regulators under the cooperation mechanism of the EU General Data Protection Regulation (“GDPR”) (the “Draft Decision”). The DPC proposes a fine between €28 and €36 million (i.e., up to $42 million) for infringements of the transparency obligations under the GDPR, specifically with respect to the legal basis upon which Facebook relied. In addition, the Draft Decision proposes imposing an order on Facebook to bring its terms of service and Data Policy into compliance within three months. However, the DPC indicates in its Draft Decision that Facebook is permitted to rely on contractual necessity as a legal basis for its personalized advertising, taking the view that this constitutes a core element of Facebook’s service.

On October 12, 2021, the Oxford County Court determined that a homeowner had breached the Data Protection Act 2018 (“DPA”) and UK General Data Protection Regulation (“UK GDPR”) by using Ring security cameras around his property. In Dr Mary Fairhurst v Mr Jon Woodard, Fairhurst claimed harassment, nuisance and breach of UK data protection law based on her former neighbor, Woodard’s, use of security cameras and lights around his property. While the claim in nuisance failed, the judge found for the claimant on the claims of harassment and breach of data protection law.

On September 27, 2021, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth published a white paper on the “GDPR Enforcement Cooperation and the One-Stop-Shop (“OSS”) - Learning from the First Three Years” (the “Paper”). The Paper identifies the challenges faced by the OSS, defines CIPL’s position, and proposes possible solutions to improve the OSS mechanism, taking into account the European Data Protection Board’s (“EDPB”) recent work and decisions by the Court of Justice of the European Union (“CJEU”).

On October 6, 2021, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth published a white paper on “Organizational Accountability in Data Protection Enforcement – How Regulators Consider Accountability in their Enforcement Decisions” (the “Paper”).