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On 16 July, 2020, the Court of Justice of the EU (“CJEU”), issued its decision in the Schrems II case.  In short, the CJEU invalidated the EU-U.S. Privacy Shield and clarified that the use of standard contractual clauses (“SCCs”) requires data controllers to conduct a case-by-case assessment of the level of data protection that SCCs can provide, taking into account the nature of the personal data transfer(s) and the country of destination.  For a more in-depth summary of the CJEU’s decision, please see our blog post here and our audiocast here.

Now, almost two months after the decision, it is an opportune time for businesses to take stock of what exactly happened and assess the practical implications of the judgement.  The result of this impact analysis may be underwhelming for some.  So far, European regulators have been mostly silent (save a few exceptions[1]) and have not issued any actionable guidance to speak of.  In all fairness, the obligations imposed by the CJEU’s judgement may be just as daunting for regulators to apply in practice as for businesses.  As a result, companies and practitioners are left grappling with what exactly they should do in the aftermath of this decision.

In this blog post, we set out some recommendations for immediate and long-term actions that businesses may want to consider implementing.  Note, however, that much depends on the nature of the personal data transfers concerned.  As can be gleaned from the CJEU’s judgement, some transfers are more sensitive than others, and some sectors are more sensitive than others (in particular, the electronic communications sector).  These risk-based considerations should inform how businesses prioritize remedial actions going forward.


Continue Reading Life After Schrems II: Practical Recommendations In An Uncertain Time

On June 24, 2020, the European Commission (“Commission”) published its much-anticipated assessment of the EU’s General Data Protection Regulation (“GDPR”) two years after it went into effect.  The assessment takes into account contributions from the European Council, the European Parliament, the European Data Protection Board (“EDPB”), individual supervisory authorities, the Multi-Stakeholder Expert Group and other stakeholders.  The assessment considers a wider scope of issues surrounding GDPR implementation beyond international transfers and the cooperation and consistency mechanisms, the two topics the Commission is specifically tasked to consider under Article 97 of the GDPR.

The Commission’s overall conclusion is that the GDPR has successfully achieved its objectives of enhancing the protection of personal data and improving the free flow of personal data within the EU.  The Commission specifically highlights the key role that the GDPR plays in the EU’s “human-centric approach to technology,” and notes that it will serve as a guiding legal framework for the EU as it rolls out its broader Data Strategy.  The Commission also notes the impact that the GDPR has had worldwide, inspiring new or elevated standards for data protection in many countries, and serving as a “global standard-setter” for regulating the digital economy.

Notwithstanding these achievements, the Commission also makes clear that there are a number of areas for improvement.


Continue Reading European Commission Publishes 2-Year Report on the Implementation of the GDPR

On April 21, 2020, the Regulation on the Requirements and Reimbursement Process for Digital Health Applications (Digitale Gesundheitsanwendungen-Verordnung or „DiGAV“, available here) entered into force in Germany.  Among other provisions, the DiGAV includes specific IT security and privacy requirements.  Shortly after the law took effect, Germany’s Federal Medicines and Medical Devices Agency (“BfArM”) also released an extensive explanatory Guidance (Leitfaden, available here) to the DiGAV.

Independently, on April 15, 2020, the German Federal Office for IT Security (“BSI”) published a draft version of its guidance on “Security Requirements for Digital Health Applications” (BSI TR-03161) (available here).  The BSI is now seeking feedback from industry on this draft guidance before releasing a final version.

While the scope of application of the DiGAV and the BSI draft guidance may be limited, the documents can serve to provide useful insights and benchmarks for health applications generally.


Continue Reading German Federal Agencies Publish Privacy and IT Security Requirements for Digital Health Applications

On April 17, 2020, the UK’s Information Commissioner’s Office (“ICO”) issued an opinion on the recently announced Apple-Google initiative to develop a Bluetooth-based Contact Tracing Framework (“CTF”) to help prevent the spread of COVID-19.  The ICO opinion is generally supportive of the Apple-Google proposal and perceives it to be, at this early phase, aligned with principles of data protection by design and by default.  The ICO also cautions that since apps developed under the CTF could also be used to collect additional data using other techniques beyond those currently planned, developers of such apps must ensure compliance with data protection laws.

Continue Reading UK ICO Issues Opinion on Apple-Google Initiative for a Contact Tracing Framework

On 19 February 2020, the new European Commission published two Communications relating to its five-year digital strategy: one on shaping Europe’s digital future, and one on its European strategy for data (the Commission also published a white paper proposing its strategy on AI; see our previous blogs here and here).  In both Communications, the Commission sets out a vision of the EU powered by digital solutions that are strongly rooted in European values and EU fundamental rights.  Both Communications also emphasize the intent to strengthen “European technological sovereignty”, which in the Commission’s view will enable the EU to define its own rules and values in the digital age.  The Communications set out the Commission’s plans to achieve this vision.

Continue Reading European Commission’s plans on data and Europe’s digital future (Part 3 of 4)

On 19 February 2020, the European Commission presented its long-awaited strategies for data and AI.  These follow Commission President Ursula von der Leyen’s commitment upon taking office to put forward legislative proposals for a “coordinated European approach to the human and ethical implications of AI” within the new Commission’s first 100 days.  Although the papers published this week do not set out a comprehensive EU legal framework for AI, they do give a clear indication of the Commission’s key priorities and anticipated next steps.

The Commission strategies are set out in four separate papers—two on AI, and one each on Europe’s digital future and the data economy.  Read together, it is clear that the Commission seeks to position the EU as a digital leader, both in terms of trustworthy AI and the wider data economy.


Continue Reading European Commission Presents Strategies for Data and AI (Part 1 of 4)

On January 27, 2020, the French Supervisory Authority (“CNIL”) issued a guidance for developers of websites and applications which sets out the main principles of the General Data Protection Regulation (“GDPR”), expounds on their application in the online environment, and gives practical tips to help developers respect users’ privacy when deploying websites and apps.

The guidance consists of 17 recommendations, each covering a key principle supported by additional advice and examples.  Below, we list all 17 of these recommendations and provide a brief summary of the CNIL’s advice related to each.


Continue Reading French Supervisory Authority Publishes Guidance for Website and App Developers

On December 11, 2019, the European Data Protection Board (“EDPB”) published the final text of the standard clauses adopted by the Danish Supervisory Authority (Datatilsynet, hereafter “Danish SA”) pursuant to Article 28(8) of the General Data Protection Regulation (“GDPR”).  The Danish clauses are now accessible on the EDPB’s register of decisions taken by Supervisory Authorities.  The Danish clauses serve as a standard data processing agreement that controllers and processors may choose to adopt to fulfill the requirements of Article 28(3) and (4) of the GDPR.  However, note that these SCCs are not standard data protection clauses under Article 46(2)(c) or (d) of the GDPR, and as such, cannot serve as a valid legal mechanism to transfer personal data outside the European Economic Area (“EEA”).

Continue Reading EDPB Publishes Article 28 Standard Clauses Adopted by Danish Supervisory Authority

In two recent landmark decisions issued on November 6, 2019, the German Constitutional Court (“BVerfG”) presented its unique perspective on the “right to be forgotten” and announced that it will assume a greater role in safeguarding German residents’ fundamental rights from now on.

Continue Reading German Constitutional Court Reshapes “Right to be Forgotten” and Expands Its Oversight of Human Rights Violations