On January 18, 2021, the European Data Protection Board (“EDPB”) published its draft Guidelines 01/2021 on Examples regarding Data Breach Notification (“Guidelines”) (available here).  The Guidelines aim to assist data controllers in responding to and assessing the risk of personal data breaches, providing “practice-oriented, case-based guidance” which draws from the experiences of European supervisory authorities since the EU General Data Protection Regulation (“GDPR” or “Regulation”) went into effect in 2018.

The Guidelines are currently open for public consultation until March 2, 2021.  In this blog post, we summarize a few key takeaways from the Guidelines.


Continue Reading EDPB Publishes Draft Guidelines on Data Breach Notification Examples

On January 12, 2020, the Spanish Supervisory Authority (“AEPD”) issued guidance on how to audit personal data processing activities that involve Artificial Intelligence (“AI”) (available here, in Spanish).  The AEPD’s guidance is directed at data controllers and processors, as well as AI developers, data protection officers (“DPO”), and auditors.  The guidance aims to help ensure that products and services which incorporate AI comply with the requirements of the European Union’s (“EU”) General Data Protection Regulation (“GDPR”).

Continue Reading Spanish Supervisory Authority Issues Guidance on Auditing Data Processing Activities Involving Artificial Intelligence

On December 23, 2020, the European Commission (the “Commission”) published its inception impact assessment (“Inception Impact Assessment”) of policy options for establishing a European Health Data Space (“EHDS”).  The Inception Impact Assessment is open for consultation until February 3, 2021, encouraging “citizens and stakeholders” to “provide views on the Commission’s understanding of the current situation, problem and possible solutions”.

Continue Reading European Commission Conducts Open Consultation on the European Health Data Space Initiative

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 January 19, 2021, the European Data Protection Board (“EDPB”) and the European Data Protection Supervisor (“EDPS”) issued a joint opinion on the draft standard contractual clauses for international data transfers (“draft SCCs”) published by the European Commission (“EC”) on November 12, 2020, including a marked-up version of the clauses.

The EDPB/EDPS joint opinion proposes

On January 5, 2021, the Council of the European Union released a new, draft version of the ePrivacy Regulation, which is meant to replace the ePrivacy Directive.  The European Commission approved a first draft of the ePrivacy Regulation in January 2017.  The draft regulation has since then been under discussion in the Council.

On January 1, 2021, Portugal took over the presidency of the Council for six months.  Ahead of the next meeting of the Council’s working party responsible for the draft ePrivacy Regulation, the Portuguese Presidency issued a revised version of the draft regulation.  This is the 14th draft version of the ePrivacy Regulation (including the European Commission’s first draft).

Once approved, the ePrivacy Regulation will set out requirements and limitations for publicly available electronic communications service providers (“service providers”) processing data of, or accessing devices belonging to, natural and legal persons “who are in the [European] Union” (“end-user”).  The regulation aims to safeguard the privacy of the end-users, the confidentiality of their communications, and the integrity of their devices.  These requirements and limitations will apply uniformly in all EU Member States.  However, EU Member States have the power to restrict the scope of these requirements and limitations where this is a “necessary, appropriate and proportionate measure in a democratic society to safeguard one or more of the general public interests.
Continue Reading Council of the EU Released a (New) Draft of the ePrivacy Regulation

On December 24th, with a year-end deadline and the holidays fast approaching, European Commission and United Kingdom (“UK”) officials announced they reached a deal on the EU-UK Trade and Cooperation Agreement (“Agreement”).  Once formally adopted by the European Union (“EU”) institutions, the Agreement will govern the relationship between the EU and UK beginning on January 1, 2021, following the end of the Brexit transition period.

The Agreement is likely to avert a year-end scramble to secure cross-border data transfers between the EU and the UK.  Although the final text has not yet been published, a UK government summary of the deal indicates that the parties agreed to allow for the continued free flow of personal data for up to six months to allow time for the EU and UK to adopt mutual “adequacy decisions,” in which each jurisdiction may recognize the other as offering adequate protection for transferred personal data.  Absent these adequacy decisions (and the interim period established by the Agreement), organizations would need to consider implementing additional safeguards, such as standard contractual clauses, to transfer personal data between the EU and UK.
Continue Reading Brexit Deal Keeps EU-UK Data Flows Open as Parties Pursue Mutual Adequacy

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 25 November 2020, the European Commission published a proposal for a Regulation on European Data Governance (“Data Governance Act”).  The proposed Act aims to facilitate data sharing across the EU and between sectors, and is one of the deliverables included in the European Strategy for Data, adopted in February 2020.  (See our previous blog here for a summary of the Commission’s European Strategy for Data.)  The press release accompanying the proposed Act states that more specific proposals on European data spaces are expected to follow in 2021, and will be complemented by a Data Act to foster business-to-business and business-to-government data sharing.

The proposed Data Governance Act sets out rules relating to the following:

  • Conditions for reuse of public sector data that is subject to existing protections, such as commercial confidentiality, intellectual property, or data protection;
  • Obligations on “providers of data sharing services,” defined as entities that provide various types of data intermediary services;
  • Introduction of the concept of “data altruism” and the possibility for organisations to register as a “Data Altruism Organisation recognised in the Union”; and
  • Establishment of a “European Data Innovation Board,” a new formal expert group chaired by the Commission.


Continue Reading The European Commission publishes a proposal for a Regulation on European Data Governance (the Data Governance Act)