On 11 May 2023, members of the European Parliament’s internal market (IMCO) and civil liberties (LIBE) committees agreed their final text on the EU’s proposed AI Act. After MEPs formalize their position through a plenary vote (expected this summer), the AI Act will enter the last stage of the legislative process: “trilogue” negotiations with the European Commission, Parliament and the Council, which adopted its own amendments in late 2022 (see our blog post here for further details). European lawmakers hope to adopt the final AI Act before the end of 2023, ahead of the European Parliament elections in 2024.

In perhaps the most significant change from the Commission and Council draft, under MEPs’ proposals, providers of foundation models – a term defined as an AI model that is “trained on broad data at scale, is designed for generality of output, and can be adapted to a wide range of distinctive tasks” (Article 3(1c)) – would be subject to a series of obligations. For example, providers would be under a duty to “demonstrate through appropriate design, testing and analysis that the identification, the reduction and mitigation of reasonably foreseeable risks to health, safety, fundamental rights, the environment and democracy and the rule of law prior and throughout development” (Article 28b(2)(a)), as well as to draw up “extensive technical documentation and intelligible instructions for use” to help those that build AI systems using the foundation model (Article 28b(2)(e)).

Continue Reading EU Parliament’s AI Act Proposals Introduce New Obligations for Foundation Models and Generative AI

On April 18, 2023, the European Commission published its proposal for an EU Cyber Solidarity Act (“CSA”).  It aims to strengthen incident detection, situational awareness, and response capabilities, and to ensure that entities providing services critical for day-to-day life can access expert support to manage their cyber risk and respond to incidents.  Specifically, the CSA aims to promote information sharing about cyber incidents and vulnerabilities, to help improve the cyber resilience of critical entities, and to create an EU-wide resource for incident management.

The CSA adds another layer to the increasingly crowded landscape of EU cybersecurity laws.  The proposed law would interact with the revised Network and Information Security Directive (“NIS2”) and certifications issued under the Cybersecurity Act. Private companies in specific sectors will also have to consider potential overlap with the forthcoming Cyber Resilience Act and the financial services-focused Digital Operation Resilience Act.

Below, we set out three striking features of the CSA that are likely to be of particular relevance to private companies.

Continue Reading Three Interesting Features of the Proposed EU Cyber Solidarity Act

On March 22, 2023, the German Conference of Independent Supervisory Authorities (“SAs”) adopted an opinion on websites that offer users a choice between (i) a free version that tracks users’ behavior or (ii) a (usually paid) version that does not track users’ behavior.

Continue Reading German Supervisory Authorities Publish Opinion on (Paid) Subscription Websites

On March 24, 2023, the Italian data protection authority (“Garante”) approved a Code of conduct (“Code”) on telemarketing and telesales activities.  The Code was promoted by various Italian industry and consumer associations, pursuant to Article 40 of GDPR. 

The Garante notes that the Code reflects broad industry consensus, and welcomes it as an important step to ensuring the lawful performance of the covered activities.  The Garante have been historically active in regulating telemarketing and telesales companies, and has applied some of its largest fines to this sector. We provide below an overview of the Code’s key provisions and obligations.

Continue Reading Italian Garante Approves Code of Conduct on Telemarketing and Telesales

On March 24, 2023, the Austrian Supervisory Authority (“Austrian SA”) held that a credit referencing agency (“Agency”) breached the GDPR by unlawfully processing personal data obtained from a third party in order to process it to conduct credit assessments.  It decided that the Agency breached the GDPR’s principle of lawfulness because it did not have a valid legal basis to process the personal data.  This case will be relevant for organizations assessing their lawful basis for processing personal data.

Continue Reading Austrian Supervisory Authority Issues Decision on the Collection of Personal Data by Credit Referencing Agency

The EU’s AI Act Proposal is continuing to make its way through the ordinary legislative procedure.  In December 2022, the Council published its sixth and final compromise text (see our previous blog post), and over the last few months, the European Parliament has been negotiating its own amendments to the AI Act Proposal.  The European Parliament is expected to finalize its position in the upcoming weeks, before entering into trilogue negotiations with the Commission and the Council, which could begin as early as April 2023.  The AI Act is expected to be adopted before the end of 2023, during the Spanish presidency of the Council, and ahead of the European elections in 2024. 

During negotiations between the Council and the European Parliament, we can expect further changes to the Commission’s AI Act proposal, in an attempt to iron out any differences and agree on a final version of the Act.  Below, we outline the key amendments proposed by the European Parliament in the course of its negotiations with the Council.

Continue Reading A Preview into the European Parliament’s Position on the EU’s AI Act Proposal

Regulators in Europe and beyond have been ramping up their efforts related to online safety for minors, through new legislation, guidance, and by promoting self-regulatory tools.  We discuss below recent developments in the EU and UK on age verification online.

Continue Reading Age Verification: State of Play and Key Developments in the EU and UK

On February 28, 2023, the European Data Protection Board (“EDPB”) released its non-binding opinion on the European Commission’s draft adequacy decision on the EU-U.S. Data Privacy Framework (“DPF”).  The adequacy decision, once formally adopted, will establish a new legal basis by which organizations in the EU (as well as the three EEA states of Iceland, Liechtenstein, and Norway) may lawfully transfer personal data to the U.S., provided that the recipient in the U.S. certifies to and abides by the terms of the DPF (see our previous blogpost here). 

The Commission sought the EDPB’s opinion pursuant to Article 71(1)(s) of the GDPR.  The EDPB welcomes the fact that elements of the DPF represent a substantial improvement over the Privacy Shield, which was annulled by the EU Court of Justice (“CJEU”) in Schrems II (see our previous blogpost here).  Nonetheless, the EDPB notes some concerns and seeks clarification on certain aspects of the DPF from the Commission.  For example, the EDPB welcomes the establishment of a specific mechanism by which non-U.S. persons may seek redress for certain U.S. government surveillance of their personal data, but calls on the Commission to closely monitor the implementation of this mechanism in practice.

Continue Reading EDPB Releases its Opinion on the Proposed EU-U.S. Data Privacy Framework

As permitted by the GDPR, France has enacted some specific requirements for the processing of health data, in particular in the context of medical research.  Following a report, the French supervisory authority (“CNIL”) audited two organizations carrying out medical research in early 2022 to check their compliance with these requirements.  On March 13, 2023, the

On March 7, 2023, the Irish Data Protection Commission (“DPC”) published its annual report for 2022. The report reflects the DPC’s reputation as both an active enforcer of the General Data Protection Regulation (“GDPR”) and a contributor to policy development at national and EU levels.  The level of interaction between the DPC and the European Data Protection Board (“EDPB”) is particularly significant with more than 300 meetings reported for 2022 (averaging at more than 25 per month), many of which involved participation in the EDPB’s expert subgroups.

Continue Reading Key Takeaways from the Irish DPC’s 2022 Annual Report