The recently agreed Cyber Resilience Act isn’t the only new EU cybersecurity rule set to be published this December: by the end of the year, the European Commission is expected to adopt its draft regulations to establish a European cybersecurity certification scheme (“ECCS”).
The EU’s Cyber Resilience Act Has Now Been Agreed
Yesterday, the European Commission, Council and Parliament announced that they had reached an agreement on the text of the Cyber Resilience Act (“CRA”). As a result, the CRA now looks set to finish its journey through the EU legislative process early next year. As we explained in our prior post about the Commission proposal, the CRA will introduce new cybersecurity obligations for a range of digital products sold in Europe. We’ll provide a more detailed summary of the agreed text once it is finalized and published but in this post we set out a brief summary of key provisions. In terms of timing, the CRA will come into force over a phased transition period starting in late 2025.
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EDPB Issues Draft Guidelines on Technical Scope of ePrivacy Directive Rules for Storage and Access
On November 16, 2023, the European Data Protection Board (“EDPB”) issued draft Guidelines 2/2023 on Technical Scope of Art. 5(3) of ePrivacy Directive (“Guidelines”). Article 5(3) is the provision that requires consent before storing or accessing information on an end user’s device. Over the years it has become known as the “cookie rule,” but it is technology-agnostic. The Guidelines expand upon guidance issued by the Article 29 Working Group in 2014, and are intended to clarify when the requirement applies to new tracking methods. The Guidelines are open to public consultation through December 28, 2023.
The Guidelines identify and explain the four key elements that trigger the obligation to obtain opt-in consent under Article 5(3) of the ePrivacy Directive (“ePD”). The Guidelines set forth an extremely broad interpretation of what constitutes “storing” and “accessing” information on a user’s device that arguably goes beyond the plain meaning of these terms. This interpretation is likely to be relevant for companies considering how to approach the discontinuation of third-party cookies on many browsers.
Implications of the EU Cybersecurity Scheme for Cloud Services
A would-be technical development could have potentially significant consequences for cloud service providers established outside the EU. The proposed EU Cybersecurity Certification Scheme for Cloud Services (EUCS)—which has been developed by the EU cybersecurity agency ENISA over the past two years and is expected to be adopted by the European Commission as an implementing act in Q1 2024—would, if adopted in its current form, establish certain requirements that could:
- exclude non-EU cloud providers from providing certain (“high” level) services to European companies, and
- preclude EU cloud customers from accessing the services of these non-EU providers.
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European Commission Publishes Guidance on NIS2: Interplay with Sector-Specific Laws
As many readers will be aware, the EU’s new cybersecurity directive, NIS2, imposes security, incident notification, and governance obligations on entities in a range of critical sectors, including energy, transport, finance, health, and digital infrastructure (for an overview of NIS2, see our previous post here). One of the main reasons the Commission proposed these new rules was the inconsistent ways in which Member States had implemented requirements under the prior directive, NIS. To help improve harmonization further, the Commission has now issued two guidance documents to help assess when NIS2 or sector-specific requirements apply, and to ensure that registration requirements are consistent across the Union.
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ICO Encourages Organizations To Cooperate with NCSC and Flags Potential Reduction in Fines
On 12 September 2023, the UK Information Commissioner, John Edwards, and the Chief Executive of the National Cyber Security Centre (“NCSC”), Lindy Cameron, signed a joint memorandum of understanding (“MoU”) detailing how the Information Commissioner’s Office (“ICO”) and NCSC will work together moving forward.
The MoU does not create legally binding obligations between the ICO and NCSC, but provides a strong signal of intent for areas of cooperation. The statements about information sharing and engaging with NCSC leading to potentially reduced fines under the UK GDPR are likely to be of particular interest to commercial organizations.
European Commission Adopts Adequacy Decision on the EU-U.S. Data Privacy Framework
On July 10, 2023, the European Commission adopted its adequacy decision on the EU-U.S. Data Privacy Framework (“DPF”). The decision, which took effect on the day of its adoption, concludes that the United States ensures an adequate level of protection for personal data transferred from the EEA to companies certified to the DPF. This blog post summarizes the key findings of the decision, what organizations wishing to certify to the DPF need to do and the process for certifying, as well as the impact on other transfer mechanisms such as the standard contractual clauses (“SCCs”), and on transfers from the UK and Switzerland.
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European Commission Proposes GDPR Enforcement Procedure Regulation
On July 4, 2023, the European Commission published its proposal for a regulation laying down additional procedural rules relating to the enforcement of the GDPR. The aim of the proposed Regulation is to clarify and harmonize the procedural rules that apply when EU supervisory authorities investigate complaint-based and ex officio cross-border cases (i.e., where the relevant processing conducted by a controller or processor spans multiple Member States, resulting in a “lead” authority and additional “concerned” authorities). If adopted, the Regulation will sit alongside the GDPR, complementing the existing cooperation and consistency mechanisms set forth in Chapter VII.
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UK and G7 Privacy Authorities Warn of Privacy Risks Raised by Generative AI
On 21 June 2023, at the close of a roundtable meeting of the G7 Data Protection and Privacy Authorities, regulators from the United States, France, Germany, Italy, United Kingdom, Canada and Japan published a joint “Statement on Generative AI” (“Statement”) (available here). In the Statement, regulators identify a range of data protection-related concerns they believe are raised by generative AI tools, including legal authority for processing personal information, and transparency, explainability, and security. The group of regulators also call on companies to “embed privacy in the design conception, operation, and management” of generative AI tools.
In advance of the G7 meeting, on 15 June 2023, the UK Information Commissioner’s Office (“ICO”) separately announced that it will be “checking” whether businesses have addressed privacy risks before deploying generative AI, and “taking action where there is risk of harm to people through poor use of their data”.
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Global CBPR Forum: A New International Data Transfer Mechanism
On April 17, 2023, the UK applied to join the Global Cross-Border Privacy Rules (“CBPR”) Forum as an Associate member. It is the first country to declare its application to participate in the Global CBPR as an Associate member since its inception one-year ago. In addition to its application, the UK co-hosted the Global CBPR Forum workshop “At One Year: Challenges and Opportunities”, which took place between April 17 to April 20, 2023.
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