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Nicholas Shepherd is an associate in Covington’s Brussels office, where he is a member of the Data Privacy and Cybersecurity practice group, advising clients on compliance with all aspects of the European General Data Protection Regulation (GDPR), ePrivacy Directive, European direct marketing laws, and other privacy and cybersecurity laws worldwide.  Nick counsels on topics that include adtech, anonymization, children's privacy, cross-border transfer restrictions, and much more, providing advice tailored to product- and service-specific contexts to help clients apply a risk-based approach in addressing requirements related to transparency, consent, lawful processing, data sharing, and others.

A U.S.-trained and qualified lawyer registered on the B-List of the Brussels Bar, Nick leverages his multi-faceted legal background and international experience to provide clear and pragmatic advice to help organizations address their privacy compliance obligations across jurisdictions.

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On March 21, 2022, the European Data Protection Board (“EDPB”) published its draft Guidelines 3/2022 on Dark patterns in social media platform interfaces (hereafter “Guidelines”, available here), following the EDPB’s plenary session held on March 14, 2022.  The stated objective of the Guidelines is to provide practical guidance to both designers and users of social media platforms about how to identify and avoid so-called “dark patterns” in social media interfaces that would violate requirements set out in the EU’s General Data Protection Regulation (“GDPR”).  In this sense, the Guidelines serve both to instruct organizations on how to design of their platforms and user interfaces in a GDPR-compliant manner, as well as to educate users on how certain practices they are subject to could run contrary to the GDPR (which could, as a result, lead to an increase in GDPR complaints arising from such practices).  The Guidelines are currently subject to a 6-week period of public consultation, and interested parties are invited to submit feedback directly to the EDPB here (see “provide your feedback” button).

In this blog post, we summarize the Guidelines and identify key takeaways.  Notably, while the Guidelines are targeted to designers and users of social media platforms, they may offer helpful insights to organizations across other sectors seeking to comply with the GDPR, and in particular, its requirements with respect to fairness, transparency, data minimization, purpose limitation, facilitating personal data rights, and so forth.

Continue Reading EDPB Publishes Draft Guidelines on the Use of “Dark Patterns” in Social Media Interfaces

On March 2, 2022, following a fast-track legislative process in the French National Assembly and Senate, President Macron of France signed into law a new piece of legislation designed to reinforce parental controls over minors’ access to the Internet (the “Law”) (see final text of the Law published in the Official Journal here, in French).

The Law will apply primarily to manufacturers of devices that enable minors to access online services and content likely to harm [their] physical, mental or moral development” (e.g., computers, smart phones, and tablets).  The Law – which extends only to devices sold with an operating system (e.g., PCs, mobile phones, tablets, smart TVs) – requires manufacturers of such devices to provide a pre-installed parental control system which can be activated by parents or guardians upon first use.  The installation, use, and (where applicable) uninstallation the system must be provided to end users at no additional cost.

Continue Reading France Enacts New Law on Parental Controls

On Episode 17 of Covington’s Inside Privacy Audiocast, Dan Cooper, Sam Choi, Danielle Kehl and Nick Shepherd discuss the developments related to children’s privacy, looking at relevant legislation, standards, and guidelines in the UK, the EU, and the U.S., and zooming in on some child-specific topics such as age thresholds and age verification,

On November 19, 2021, the European Data Protection Board (“EDPB”) published its draft Guidelines 05/2021 on the Interplay between the application of Article 3 and the provisions on international transfers as per Chapter V of the GDPR (available here).  The draft guidelines are currently subject to a public consultation period that ends on January 31, 2022; interested stakeholders can submit their feedback here.

In this blog post, we provide a brief background on the issues addressed in the draft guidelines, and summarize the key takeaways.

Continue Reading EDPB Publishes Draft Guidelines on Interplay of Article 3 GDPR and the GDPR’s Cross-Border Transfer Rules

On August 11, 2021, the UK Information Commissioner’s Office (“ICO”) opened a public consultation to solicit stakeholder input regarding the UK’s approach to regulating international transfers of personal data under the UK General Data Protection Regulation (“UK GDPR”) (see here).  To kick off this initiative, the ICO published a consultation paper setting out various policy options that the UK is considering, as well as:

  • a draft set of contractual templates to facilitate transfers of personal data outside the UK, including: (1) a draft international data transfer agreement (“IDTA”); and (2) a draft international transfer addendum to be appended to the recently approved EU standard contractual clauses (“EU Addendum”); and
  • a draft transfer impact assessment tool designed to help controllers and processors transferring personal data under the UK GDPR satisfy the requirements articulated by the Court of Justice of the European Union (“CJEU”) in the Schrems II decision (see here).

The ICO has requested that interested stakeholders submit their feedback by no later than October 7, 2021.  In this blog post, we summarize these documents and tools, and identify topics that interested stakeholders may want to address when preparing their submission to the public consultation.

Continue Reading UK Information Commissioner’s Office Opens Public Consultation on Policy Proposals and Documentation for International Transfers

On June 28, 2021, the European Commission adopted two decisions finding that the UK’s data protection regime provides an “adequate” level of protection for personal data transferred to the UK from the EU.  The first decision covers transfers governed by the GDPR, and permits private companies located in the EU to continue to transfer personal data to the UK without the need for additional arrangements (such as the Commission’s new Standard Contractual Clauses (“SCCs”), which we discuss here).  The second decision covers transfers under the Data Protection and Law Enforcement Directive, and permits EU law enforcement agencies to continue to transfer personal data to their counterparts in the UK.
Continue Reading European Commission Adopts Final UK Adequacy Decisions

On June 15, 2021, the Court of Justice of the European Union (“CJEU”) rendered a decision (press release here, full judgment here) addressing whether a European supervisory authority (“SA”) that is not the “Lead SA” (as defined in Article 56 GDPR) has competence to bring a case for an alleged violation of the General Data Protection Regulation (“GDPR“) before a national court in instances where the alleged violation involved the processing of personal data across multiple EU Member States.  In such scenarios, a controller with a main establishment in Europe will typically seek to benefit from the so-called “one-stop-shop” principle under Article 56 GDPR, meaning the controller would need to answer to only one SA rather than be subject to enforcement actions brought by numerous SAs.
Continue Reading CJEU Decides on Competence of Supervisory Authorities to Bring Cases Before National Courts under the GDPR

On June 9, 2021, the French Supervisory Authority (“CNIL”) published recommendations to help strengthen the protection of minors online (see here, in French).  These recommendations are the result of a survey and public consultation conducted by the CNIL in 2020, which focused on the digital practices of minors (see our blog post here).  The results of the CNIL’s survey and public consultation indicate that children are accessing the Internet at an early age on a “massive” scale.  In light of this reality, the CNIL underscores the importance of ensuring that minors benefit from the effective protection of their personal data when engaging online.

Continue Reading French CNIL Publishes Recommendations for Protecting Minors Online

Today, June 4th, 2021, the European Commission (“Commission”) published the final version of its new standard contractual clauses for the international transfer of personal data (“SCCs”) (see here).  While the final version retains much of the language of the draft version released in November 2020 (see here), it includes several notable updates.  When finalizing the SCCs, the Commission took into account the joint opinion of the European Data Protection Board (“EDPB”) and the European Data Protection Supervisor, feedback submitted by stakeholders during the public consultation period, and the opinions of EU Member States’ representatives.

In this blog post, we identify several key features of the new SCCs that organizations should keep in mind when preparing to implement them in contractual agreements going forward.

Continue Reading European Commission Publishes New Standard Contractual Clauses

On February 18, 2021, the District Court of Berlin overturned a €14.5 million fine that had been imposed on German real estate company Deutsche Wohnen SE.  The Court held that the fine – which was issued by the Berlin Supervisory Authority (“SA”) and had been the second highest fine in Germany so far under the EU General Data Protection Regulation (“GDPR”) – failed to satisfy certain rules under German law, and therefore was invalid.

This case raises important questions on the interplay between the GDPR and German law regarding the attribution of regulatory offenses to a company.  In this blog post, we consider this topic in greater depth and how it may eventually be resolved in court.

Continue Reading German Court Overturns GDPR Fine, Raises Legal Questions About Fines Against Companies