The Digital Services Act (“DSA”) is nearing final approval. The DSA imposes new rules on providers of intermediary services (e.g., cloud services, file-sharing services, search engines, social networks and online marketplaces). As we reported in July, the European Parliament voted to adopt the DSA on 5 July 2022. As we wait for the Council to adopt it, there have been a couple of updates in recent weeks, which we set out below. We will keep this blog updated as the finish line approaches.
Advising clients on a broad range of data protection, e-privacy and online content issues under EU, Irish, and UK law, Shóna O’Donovan works with her clients on technology regulatory and policy issues.
With multi-jurisdictional and in-house experience, Shóna advises global companies on complying with data protection laws in the EU. In particular, she represents organizations in regulatory investigations and inquiries, advises on children’s privacy issues and provides strategic advice on incident response. Shóna also advises clients on policy developments in online content and online safety.
In her current role, Shóna has gained experience on secondment to the data protection team of a global technology company. In a previous role, she spent seven months on secondment to the European data protection team of a global social media company.
Shóna’s recent pro bono work includes providing data protection advice to the International Aids Vaccine Initiative and a UK charity helping people with dementia, and working with an organization specializing in providing advice to states involved in conflict on documenting human rights abuses.
On May 10, 2022, Prince Charles announced in the Queen’s Speech that the UK Government’s proposed Online Safety Bill (the “OSB”) will proceed through Parliament. The OSB is currently at committee stage in the House of Commons. Since it was first announced in December 2020, the OSB has been the subject of intense debate and scrutiny on the balance it seeks to strike between online safety and protecting children on the one hand, and freedom of expression and privacy on the other.…
In the Queen’s Speech on 10 May 2022, the UK Government set out its legislative programme for the months ahead. This includes: reforms to UK data protection laws (no details yet); confirmation that the government will strengthen cybersecurity obligations for connected products and make it easier for telecoms providers to improve the UK’s digital infrastructure; and new rules to enable the use of self-driving cars on public roads. In addition, the government confirmed its plans to move forward with the Online Safety Bill. As part of the government’s broader agenda to “level up” the UK and provide a post-Brexit economic dividend, many of the legislative initiatives referenced in the Queen’s Speech are presented as seeking to encourage greater use of data and technology to support innovation and enable growth.
We summarize below the key digital policy announcements in the Queen’s Speech and how they fit into wider developments in the UK’s regulatory landscape.…
On January 28, 2022, the European Data Protection Board (“EDPB”) initiated a public consultation on its draft Guidelines 01/2022 on data subject rights – Right of access (“draft Guidelines”). Running to 60 pages, the draft Guidelines cover a range of topics relating to the right of access, including analyzing a request; establishing…
On January 13, 2021, the Advocate General (“AG”), Michal Bobek, of the Court of Justice of the European Union (“CJEU”) issued his Opinion in Case C-645/19 Facebook Ireland Limited, Facebook Inc., Facebook Belgium BVBA v. the Belgian Data Protection Authority (“Belgian DPA”). The AG determined that the one-stop shop mechanism under the EU’s General Data Protection Regulation (“GDPR”) prevents supervisory authorities, who are not the lead supervisory authority (“LSA”) of a controller or processor, from bringing proceedings before their national court, except in limited and exceptional cases specifically provided for by the GDPR. The case will now move to the CJEU for a final judgment.
Continue Reading Supervisory Authorities Cannot Circumvent One-Stop-Shop According to CJEU Advocate General
On December 18, 2020, the Irish Data Protection Commission (“DPC”) published its draft Fundamentals for a Child-Oriented Approach to Data Processing (the “Fundamentals”). The Fundamentals introduce child-specific data protection principles and measures, which are designed to protect children against data processing risks when they access services, both online and off-line. The DPC notes that all organizations collecting and processing children’s data should comply with the Fundamentals. The Fundamentals are open for public consultation until March 31, 2021.
Continue Reading Irish DPC publishes draft Fundamentals for a Child-Oriented Approach to Data Processing
On December 15, 2020, the Irish Data Protection Commission (“DPC”) fined Twitter International Company (“TIC”) EUR 450,000 (USD 500,000) following a narrow investigation into TIC’s compliance with obligations to (a) notify a personal data breach within 72 hours under Article 33(1) GDPR; and (b) document the facts of the breach under Article 33(5) GDPR. The process to investigate these points took a little under two years, and resulted in a decision of nearly 200 pages.
This is the first time that the DPC has issued a GDPR fine as a lead supervisory authority (“LSA”) after going through the “cooperation” and “consistency” mechanisms that enable other authorities to raise objections and the EDPB to resolve disagreements. The delay in the process and details in the EDPB binding resolution suggest that this was a somewhat arduous process. Several authorities raised objections in response to the DPC’s draft report – regarding the identity of the controller (Irish entity and/or U.S. parent), the competence of the DPC to be LSA, the scope of the investigation, the size of the fine, and other matters. Following some back and forth — most authorities maintained their objections despite the DPC’s explanations — the DPC referred the matter to the EDPB under the GDPR’s dispute resolution procedure. The EDPB considered the objections and dismissed nearly all of them as not being “relevant and reasoned”, but did require the DPC to reassess the level of the proposed fine.
Process aside, the DPC’s decision contains some interesting points on when a controller is deemed to be “aware” of a personal data breach for the purpose of notifying a breach to a supervisory authority. This may be particularly relevant for companies based in Europe that rely on parent companies in the US and elsewhere to process data on their behalf. The decision also underlines the importance of documenting breaches and what details organizations should include in these internal reports.
Continue Reading Twitter Fine: a View into the Consistency Mechanism, and “Constructive Awareness” of Breaches
On 7 September 2020, the European Data Protection Board (“EDPB”) adopted draft guidelines on the targeting of social media users (the “Guidelines”). The Guidelines aim to clarify the roles and responsibilities of social media providers and “targeters” with regard to the processing of personal data for the purposes of targeting social media users.
Continue Reading EDPB Publishes Draft Guidelines on the Targeting of Social Media Users