Privacy & Information Security Law Blog

On February 27, 2013, the Article 29 Working Party (the “Working Party”) issued a statement on the European Commission’s proposed revised data protection framework (“Statement”), including the proposed General Data Protection Regulation (“Proposed Regulation”). The Working Party offered amendments to the Proposed Regulation in the form of two Annexes to the Statement on the topics of competence and lead data protection authority (“DPA”) and the exemption for household or personal activities.

Following up on its February 5, 2013 consultation paper, Singapore’s Personal Data Protection Commission has issued two additional public consultation papers concerning the guidelines the Commission is empowered to issue under the new data protection law. The first proposed set of advisory guidelines examines key concepts in the Personal Data Protection Act (“PDPA”), with thorough discussions of definitions as well as data protection obligations set forth in the PDPA. The second paper addresses selected topics: analytics and research, anonymization, employment, use of national ID numbers and online activities. In addition, the Commission has produced a cover note on how to submit comments on these public consultations.

On January 17, 2013, Mexico’s Ministry of Economy published its Lineamientos del Aviso de Privacidad (in Spanish) (“Privacy Notice Guidelines” or “Guidelines”), which it prepared in collaboration with the Mexican data protection authority. The Guidelines introduce heightened notice and opt-out requirements for the use of cookies, web beacons and similar technology, and they impose extensive requirements on the content and delivery of privacy notices generally (with respect to all personal data, not just data collected via cookies and other automated means). The Guidelines will take effect in mid-April.

On February 5, 2013, Singapore’s new data protection agency, the Personal Data Protection Commission, published its first consultation paper (the “Paper”) articulating proposals for a data protection regulation. The Paper outlines the Commission’s positions on three key issues: (1) requests for access and correction; (2) transfer of personal data outside of Singapore; and (3) individuals who may act for others under the Personal Data Protection Act (“PDPA”). The PDPA was passed by the Singapore Parliament in October 2012 and became law in January 2013.

Reporting from Australia, former Australian Privacy Commissioner Malcolm Crompton, Managing Director of Information Integrity Solutions Pty Ltd (“IIS”), writes:

The Australian Privacy Amendment (Enhancing Privacy Protection) Act 2012 (the “Act”) will make significant changes to the Privacy Act 1988. It’s early days for the changes and the impact for organizations will depend on their circumstances. Over the next 15 months we expect to see a range of guidance material from the Office of the Australian Information Commissioner.

On January 16, 2013, the French Data Protection Authority (“CNIL”) released its opinion on the draft report issued by Jan Philipp Albrecht, the rapporteur to the EU Parliament’s Committee on Civil Liberties, Justice and Home Affairs (the “Report”). The Report included detailed amendments to the European Commission’s proposed General Data Protection Regulation (the “Proposed Regulation”) submitted by various stakeholders which Rapporteur Albrecht consolidated and distilled into a single text. The CNIL’s Report welcomes these amendments and in particular, the following:

Recently, the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (“LIBE”) released a study titled Fighting cyber crime and protecting privacy in the cloud (the “Study”). The Study originally was prepared in October 2012 at the request of the LIBE Committee by the European Parliament’s Policy Department of Citizens’ Rights and Constitutional Affairs, with the help of the Centre for European Policy Studies and the Centre d’Etudes sur les Conflits.

On January 10, 2013, the rapporteur to the EU Parliament’s Committee on Civil Liberties, Justice and Home Affairs (“LIBE”), Jan Philipp Albrecht, presented his draft report (the “Report”) on the proposed amendments to the European Commission’s proposed General Data Protection Regulation (the “Proposed Regulation”) to the LIBE Committee.

On October 15, 2012, the Singapore Parliament passed the Personal Data Protection Act 2012. Though a law has been under discussion for quite some time, this bill was introduced before Parliament only recently, in September of this year. The new law will apply only to data processing in the private sector as data processing by public agencies (or organizations acting on behalf of public agencies) are already subject to internal government rules. Reportedly, the bill will become law in January 2013, enforceable after 18 months, in mid-2014.

On September 27, 2012, the European Commission presented its new strategy on cloud computing, entitled “Unleashing the Potential of Cloud Computing in Europe.” The Commission’s strategy is outlined on a new webpage that includes a communication document and a more detailed staff working paper.

On July, 19, 2012, the Article 29 Working Party (the “Working Party”) issued an Opinion finding that the Principality of Monaco ensures an “adequate level of protection” for personal data within the meaning of the European Data Protection Directive (Article 25 of Directive 95/46/EC) (the “Directive”). Under the Directive, strict conditions apply to personal data transfers to countries outside the European Economic Area that are not considered to provide an “adequate” level of data protection.

As of September 1, 2012, all personal data in Germany may only be processed and used for marketing purposes (including address trading) with the express opt-in consent of the affected individuals. Furthermore, the consent language must have been specifically drawn to the attention of the relevant individual as part of the terms and conditions governing the use of his or her personal data.

On August 21, 2012, the European Commission formally approved Uruguay’s status as a country providing “adequate protection” for personal data within the meaning of the European Data Protection Directive (Article 25(6) of Directive 95/46/EC). This follows the Article 29 Working Party’s earlier favorable Opinion issued in 2010, and takes into account certain interpretative assurances and clarifications provided by Uruguay. Accordingly, transfers of personal data from the EU to Uruguay may now take place without additional intergovernmental guarantees and in accordance with applicable data protection provisions.

On August 15, 2012, Philippines President Benigno S. Aquino III signed the Data Privacy Act of 2012 passed earlier this year by the Philippine Senate and House of Representatives. Concerns about the creation of the National Privacy Commission and the criminal penalties associated with the Act delayed final enactment.

On July 1, 2012, the Article 29 Working Party (the “Working Party”) adopted WP196 (the “Opinion”) setting out an analysis of the legal framework associated with cloud computing, as well as recommendations directed at both data controllers and data processors in the European Economic Area (the “EEA”). The Opinion identifies two data protection risks associated with the deployment of cloud computing services, namely: (1) lack of control over the data and (2) lack of information on data processing. Cloud computing and the range and geographical dispersion of the various parties involved also have raised significant uncertainty in terms of applicable law, which the Working Party previously analyzed in its Opinion 8/2010. Below is an overview of the different topics covered in the Opinion issued on July 1.

As policymakers around the world consider revisions to existing privacy and data protection law, they often refer to “interoperability” as a mechanism to facilitate the flow of data across national and regional borders. Reports released this year by the Obama Administration and the Federal Trade Commission recognize the value of interoperability to the growth of the digital economy and improving privacy compliance. Principles underlying the APEC framework would support a system for transferring data across APEC economies, and the OECD has acknowledged that regulatory authorities worldwide share the responsibility of promoting the protection of cross-border data flows. But although interoperability is expected to help lower barriers to data transfers, simplify compliance and protect individuals’ rights, there has been little discussion of how interoperability would work in practice.

On May 26, 2012, the United States government submitted its request to participate in the APEC Cross-Border Privacy Rules (“CBPRs”) system. The CBPRs system was endorsed by APEC leaders in November 2011. The protocol requires a participating economy to submit:

• A letter of intent to participate;
• Confirmation that a privacy enforcement agency in the economy is a participant in the Cross-Border Privacy Enforcement Arrangement;
• Notice that the economy intends to make use of at least one APEC-recognized accountability agency; and
• A description of the domestic laws and other legal mechanisms to give effect to the enforcement activities related to the activities of the accountability agent, which also must include an enforcement map.

On May 2, 2012, Australia’s Attorney General Nicola Roxon announced that the Australian government will introduce a bill to the Australian Parliament that will enact a number of the recommendations from the 2008 Law Reform Commission Report (ALRC Report 108) and reform privacy law in Australia. Discussion drafts of segments of the bill were considered by a Senate Committee in 2011. On May 4, Australian Privacy Commissioner Timothy Pilgrim presented an overview of the draft legislation at an event held during the iappANZ Privacy Awareness Week. Commissioner Pilgrim noted that the legislative package includes:

On May 3, 2012, Viviane Reding, Justice Commissioner and European Commission Vice-President, delivered a speech during the European data protection authorities’ (“DPAs’”) Spring Conference, which was held in closed sessions in Luxembourg. In her speech, Commissioner Reding discussed how the proposed EU Data Protection Regulation aimed to empower the DPAs and addressed some of the DPAs’ primary concerns with the reform.

On March 23, 2012, the Article 29 Working Party (the “Working Party”) adopted an Opinion on the European Commission’s data protection law reform proposals, including the draft Regulation that is of particular importance for businesses. The Working Party’s Opinion serves as the national data protection authorities’ contribution to the legislative process before the European Parliament and the European Council.

On March 19, 2012, the European Commission hosted this year’s Safe Harbor Conference in Washington, D.C., to address the transfer of data from Europe to the United States. Although it appears the Safe Harbor framework will remain unchanged for the time being, it seems unlikely the United States will be considered adequate, or even interoperable, with the EU for purposes of cross-border data transfers.

On January 25, 2012, the UK Information Commissioner’s Office (“ICO”) published an initial statement welcoming the European Commission’s proposed new General Data Protection Regulation (the “Proposed Regulation”), and commended the Commission’s efforts to strengthen the rights of individuals, recognize important privacy concepts such as privacy by design and privacy impact assessments, and include accountability requirements.

On January 25, 2012, the European Commission released a data protection law reform package, including its proposed General Data Protection Regulation (the “Proposed Regulation”). The UK Information Commissioner’s Office (“ICO”) has reacted positively to the Proposed Regulation, in particular commending efforts to strengthen the rights of individuals, the recognition of important privacy concepts such as privacy by design and privacy impact assessments, and new accountability requirements to ensure organizations properly demonstrate and document their data protection safeguards and procedures.

On December 21, 2011, Mexico issued the final version of its Regulations of the Federal Law for the Protection of Personal Data Held by Private Parties (Reglamento de la Ley Federal de Protección de Datos Personales en Posesión de los Particulares). The regulations, which contain mostly minor changes to the prior draft that was released in October, will take effect on December 22, 2011. Notable updates in this final draft include:

• clarification of notice and consent requirements;
• changes to restrictions on cloud computing;
• updates to requirements regarding data transfers; and

Shortly before Viviane Reding, Vice-President of the European Commission and Commissioner for Justice, Fundamental Rights and Citizenship, gave her keynote address on binding corporate rules (“BCRs”) at the IAPP Europe Data Protection Congress in Paris, Hunton & Williams co-authored two articles on BCRs with the French Data Protection Authority (“CNIL”):

On November 16, 2011, the French Data Protection Authority (the “CNIL”) published its Annual Activity Report for 2010 (the “Report”) highlighting its main 2010 accomplishments and outlining some of its priorities for the upcoming year. This year’s Report covers events that occurred since last year’s publication of the Annual Activity Report for 2009.

On October 20, 2011, Mexico’s Ministry of Economy made public an update to its proposed Regulations to the Federal Law for the Protection of Personal Data Held by Private Parties. The new draft regulations, which contain changes made in light of public comments on the prior version, will take effect if they receive final executive approval, which may happen later this year. The updates to the draft regulations include:

• Rules specific to cloud computing
• Clarification of notice requirements
• Clarification of consent requirements
• Exemptions for certain business contact ...

On October 10-12, 2011, the Council of Europe’s Bureau of the Consultative Committee of the Convention for the Protection of Individuals with regard to the Automatic Processing of Personal Data (known as the “T-PD-Bureau”) met in Strasbourg, France, to discuss, among other things, amending the Council of Europe’s Convention 108 and Additional Protocol. Convention 108 (together with the Protocol), which underlies the European Union’s legal framework for data protection, is the only legally-binding international convention that addresses data protection. Amendment of the Convention is also closely linked to the current review of the EU data protection framework.

On October 17, 2011, the French Data Protection Authority (the “CNIL”) launched a public consultation on cloud computing (the “Consultation”). The Consultation seeks to gather opinions from stakeholders (clients, providers, consultants) regarding cloud computing services for businesses, to identify legal and technical solutions that address data protection concerns while taking into account the economic interests involved.

On June 17, 2011, the National Assembly of the Republic of Angola passed Law 22/11 on Personal Data Protection.  The omnibus privacy legislation applies to the automated and non-automated processing of personal data by controllers based or operating in Angola, or subject to, or using equipment governed by, Angola’s laws.  Some highlights of the law are listed below.

On July 13, 2011, the Belgian Privacy Commission (the “Belgian DPA”) signed a Protocol with the Ministry of Justice which significantly simplifies the authorization procedure for binding corporate rules (“BCRs”) under Belgian law.  The Protocol was just made public on the Belgian DPA's website. 

On August 24, 2011, the Government of India’s Ministry of Communications & Information Technology issued a clarification regarding India’s new privacy regulations, known as the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 (the “Rules”), under Section 43A of the Information Technology Act 2000.

The Department of Commerce released an English translation of Peru’s Law for Personal Data Protection (Ley de Protección de Datos Personales, Ley No. 29733).  The law passed Peru’s Congress on June 7, 2011, and was signed by the president July 2, 2011.  Peru’s adoption of this new law is in keeping with a recent trend in Latin America, where Uruguay, Mexico and Colombia also have passed privacy legislation.

On July 6, 2011, Mexico’s Secretary of Economy, in conjunction with the Federal Institute for Access to Information and Data Protection (“IFAI”), released wide-ranging privacy regulations for public comment.  The regulations establish rules and guidelines for the implementation of Mexico’s Federal Law on the Protection of Personal Data in the Possession of Private Parties (Ley Federal de Protección de Datos Personales en Posesión de los Particulares), which became effective one year ago.  Among the topics covered are jurisdictional issues, details regarding ...

As reported in BNA’s Privacy Law Watch, on July 2, 2011, Peruvian President Alan García signed the Personal Data Protection Law (Ley de Protección de Datos Personales, Ley No. 29733), making Peru the latest Latin American country to adopt EU-style omnibus privacy legislation.  Implementing rules for the new law are to be drafted in the next few months.

On June 28-30, 2011, the Council of Europe’s Bureau of the Consultative Committee of the Convention for the Protection of Individuals with regard to the Automatic Processing of Personal Data (known as the “T-PD-Bureau”) met in Strasbourg, France, to discuss, among other things, amending the Council of Europe’s Convention 108.  Convention 108, which underlies the European Union’s legal framework for data protection, is the only legally-binding international convention that addresses data protection.  Amendment of the Convention is thus closely linked to the current review of the EU data protection framework, and many of the same actors are involved in both exercises.

On June 7, 2011, the Congress of the Republic of Peru passed the Personal Data Protection Law (Ley de Protección de Datos Personales, Proyecto de Ley 4079/2009-PE).  If signed into law, the bill would make Peru the newest member of the group of Latin American countries with EU-style omnibus privacy legislation.  The broad-ranging legislation would do the following, among other things:

On June 13, 2011, the Polish Data Protection Authority (Generalny Inspektor Ochrony Danych Osbowych or “GIODO”) hosted a conference in Warsaw on the use of binding corporate rules (“BCRs”) for international data transfers.  The conference was notable as the first on this topic in Poland, and was designed to introduce BCRs to a Polish audience and to promote their use.  The audience of approximately 70 people heard presentations by the Polish Inspector General for Data Protection, Wojciech Rafał Wiewiórowski, as well as representatives of the Belgian, French, Polish ...

On April 11, 2011, India adopted new privacy regulations, known as the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 (the “Rules”).  The Rules are final versions of the draft regulations issued in February 2011 and impose wide-ranging obligations on any “body corporate” (company) that “collects, receives, possesses, stores, deals or handles” personal information.  These obligations require companies to provide privacy policies, restrict the processing of sensitive personal data, restrict international data transfers and require additional security measures.  The Rules introduce an omnibus privacy law that is similar in many respects to existing EU data protection law, but which raises some fundamental challenges for India’s numerous outsourcing vendors, and their customers.

On April 26, 2011, the French Data Protection Authority (the “CNIL”) issued a press release unveiling its inspection goals for the coming year.  In a report adopted on March 24, 2011, the CNIL indicated that it intends to conduct at least 400 inspections in France (100 more than the 2010 goal), with a special focus on the following issues:

On April 4, 2011, the Article 29 Working Party (the “Working Party”) issued an Opinion finding that New Zealand ensures an adequate level of data protection within the meaning of the EU Data Protection Directive 95/46/EC (the “Data Protection Directive”).  The Working Party’s assessment in the Opinion focuses on the New Zealand Privacy Act 1993 and is based primarily on a comparison of the Act and relevant case law, against the provisions of the Data Protection Directive.

On March 16, 2011, a meeting of the “European Privacy Platform” group of the European Parliament was held in Brussels.  The meeting provided important insights into the likely structure and content of proposed revisions to the European Data Protection Directive 95/46/EC that the European Commission has been working on for the past several months.

The Council of the European Union (the “Council”) released its conclusions following meetings held on February 24 and 25, 2011, regarding the European Commission’s November 4, 2010 Communication proposing “a comprehensive approach on personal data protection in the European Union” which we reported on last November.

A draft document, entitled Information Security Technology - Guidelines for Personal Information Protection, has been issued in China for comment.  While comments are being solicited at this time, if issued in its proposed form, this document has the potential to add significantly to the rules governing the handling of personal information in China.  Read More...

On February 3, 2011, the German Federal Commissioner for Data Protection and Freedom of Information issued a press release announcing that it has approved the privacy policy formulated by Deutsche Post DHL.  This allows Deutsche Post DHL to transfer personal data abroad in accordance with its privacy policy without having to obtain approval in individual cases.  Deutsche Post DHL is the first German company to have its binding corporate rules (“BCRs”) approved at the European level, following an extensive consultation process among EU data protection authorities.

On January 17, 2011, the Centre for Information Policy Leadership at Hunton & Williams LLP (the “Centre”) released a response to the European Commission’s consultation paper, “A comprehensive approach on personal data protection in the European Union.”  In its response, prepared by Richard Thomas, former UK Information Commissioner and Global Strategy Advisor of the Centre, the Centre calls for a modernized European framework for data protection that addresses the realities of the digital age.

On October 11, 2010, the French Data Protection Authority (the “CNIL”) released guidance (the “Guidance”) on data protection issues related to the outsourcing of data processing activities to non-EU countries (Les questions posées pour la protection des données personnelles par l’externalisation hors de l’Union européenne des traitements informatiques).

The Guidance was prepared following interviews held in 2009 by the CNIL’s international affairs department with consultancy groups, law firms advising on outsourcing deals, and companies actively engaged in offshore activities.  The interviews were conducted to provide the CNIL with insight regarding the impact of data protection requirements on outsourcing activities.  The Guidance is part of a broader analysis of the concepts of data controller and data processor carried out by the Article 29 Working Party (see the Working Party’s Opinion on the concepts of controller and processor).

On October 15, 2010, the Article 29 Working Party published an Opinion finding that Uruguay ensures an adequate level of protection within the meaning of the European Data Protection Directive (Article 25(6) of Directive 95/46/EC).

This Opinion was issued pursuant to an official request Uruguay filed with the European Commission in October 2008.  While the Article 29 Working Party’s Opinion is an important step toward adequacy, the European Commission must now make a formal decision that the Uruguayan legal framework provides an adequate level of data protection under EU data protection law.  The European Commission will take the Article 29 Working Party’s Opinion into account when determining whether to issue an “adequacy decision” in the coming months.  As recently illustrated by the adequacy procedure for Israel, this process may prove to be difficult.

On behalf of a group of interested parties (the “Group”), Hunton & Williams and Acxiom submitted a response to the UK Ministry of Justice’s (“MoJ”) recent Call for Evidence on the effectiveness of current data protection legislation in the UK.  The Group is comprised of representatives from more than 40 organizations, including Barclays Bank, Dell, Fujitsu and GE Capital, all of which are committed to using personal data responsibly.  Hunton & Williams and Acxiom, a global leader in interactive marketing services, with the attendance of the Group, worked together over the last two months to host two discussion meetings, and produced a submission summarizing the Group’s views.

Justice Michael Kirby was invited by the Organization for Economic Cooperation and Development (the “OECD”) to open the celebration of the 30th anniversary of the adoption of the OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data.  Justice Kirby led the group of experts who worked from 1978-1980 to develop the Guidelines, which have formed the basis of modern privacy and data protection law.

On February 5, 2010, the European Commission adopted a new set of standard contractual clauses (“SCCs”) for transfers of personal data from data controllers in the EU to data processors outside the EU.  View the European Commission press release.

Cloud computing raises complex legal issues related to privacy and information security.  As legislators and regulators around the world grapple with the privacy and data security implications of cloud computing, companies seeking to implement cloud-based solutions should closely monitor this rapidly evolving legal landscape for developments.  In an article published on February 3, 2010, Lisa Sotto, Bridget Treacy and Melinda McLellan explore U.S. and EU legal requirements applicable to data stored by cloud providers, and highlight some of the risks associated with the use ...

On January 8, 2010, the Swiss Federal Administrative Court (“Bundesverwaltungsgericht”) published a decision that declared the transfer of banking data to U.S. law enforcement authorities by the Swiss bank UBS to be illegal.  In late 2009, UBS transferred the data of over 300 customers suspected of evading U.S. taxes to the U.S. Department of Justice and Internal Revenue Service following an order issued by the Swiss Financial Market Supervisory Authority (“Finma”) pursuant to an agreement Finma reached with the U.S. authorities.

On August 19, 2009, the Official Journal published guidelines issued by the French Data Protection Authority (Commission nationale de l’informatique et des libertés (the “CNIL”)) regarding transfers of personal data carried out in the context of U.S. discovery proceedings (the “Guidelines”). The CNIL’s publication comes in the wake of a recent increase in the volume of requests made to French-based companies involved in U.S. litigation to disclose information or documents for the purposes of civil pre-trial discovery.

On March 17, the Article 29 Working Party released its Opinion 3/2009 (dated March 5) on standard contractual clauses for the transfer of personal data from data controllers in the EU to data processors outside the EU. The Opinion deals with proposed changes to the European Commission's decision 2002/16 containing standard clauses for controller to processor transfers. The Opinion discusses proposals to update these clauses to accommodate data transfers to sub-processors, in light of increased global outsourcing. Although not mentioned in the Opinion, the March 17 Opinion is based on the proposal made in October 2006 to the European Commission by three business groups (the International Chamber of Commerce (ICC), the American Chamber of Commerce to the European Union (AmCham EU) and the Federation of European Direct and Interactive Marketing (FEDMA)). The proposal of the three business groups would amend the existing clauses from 2002 to bring them into line with business realities.