Article 29 Working Party

On January 24, the European Data Protection Board (“EDPB”) adopted a report (“Report”) regarding the second annual review of the EU-U.S. Privacy Shield (“Privacy Shield”).  In a press release accompanying the Report, the EDPB welcomed efforts by EU and U.S. authorities to implement the Privacy Shield,  including in particular the recent appointment of a permanent Ombudsperson.  But the EDPB also noted that certain concerns remain with respect to the implementation of the Privacy Shield.

The EDPB, which is made up of representatives of various European data protection authorities, is established by the GDPR, and advises on the consistent application of data protection rules throughout the EU.  The Report is not binding on the EU or U.S. authorities directly; instead it will serve to guide regulators considering the implementation of the Privacy Shield.  The Report is also likely to influence the EU Commission’s assessment of the Privacy Shield, and to contribute to political pressure in the European Parliament to continue to reform the Shield.    
Continue Reading European Data Protection Board Releases Report on the Privacy Shield

The Article 29 Working Party (WP29) has published long-awaited draft guidance on transparency and consent under the General Data Protection Regulation (“GDPR”).  We are continuing to analyze the lengthy guidance documents, but wanted to highlight some immediate reactions and aspects of the guidance that we think will be of interest to clients and other readers of InsidePrivacy.  The draft guidance is open for consultation until 23 January 2018.

Continue Reading EU Regulators Provide Guidance on Notice and Consent under GDPR

By Dan Cooper and Rosie Klement

The EU’s Article 29 Working Party (“WP29”) has issued new guidance on data processing in the employment context.  Adopted on June 8, 2017, the guidance primarily takes account of the existing data protection framework under the EU Data Protection Directive (Directive 95/46/EC), but also considers the developments coming into force on May 25, 2018 under the EU General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”).

The WP29 released the guidance partly as a result of the GDPR, but also due to the number of new technologies that have been adopted since previous WP29 publications relating to personal data in the workplace (see Opinion 8/2001 on the processing of personal data in the employment context and the 2002 Working Document on the surveillance of electronic communications in the workplace).  As the WP29 observes, these new technologies enable extensive systematic processing of employees’ personal data and present significant challenges to privacy and data protection.

The new guidance is not restricted to the protection of persons with an employment contract, but is more expansive in scope and intended to cover a range of individuals in an employment relationship with an organization, such as applicants and part-time workers (the term “employee” applies broadly in all such contexts).  The guidance discusses a number of distinct employment scenarios: processing operations during the recruitment and employee screening stage; processing for monitoring ICT usage in and out of the workplace; time, attendance and video monitoring; processing relating to employees’ use of vehicles; as well as the disclosure of employee data to third parties and international transfers of personal data.
Continue Reading EU Article 29 Working Party Releases Extensive GDPR Guidance on Data Processing at Work

The first annual review of the EU-U.S. Privacy Shield (“Privacy Shield”) is scheduled to occur in September 2017 in Washington, D.C.  The first review is particularly important for the nascent framework, as regulators in both the U.S. and the EU are expected to closely scrutinize the operation of the first year of the Privacy Shield, address concerns that have been raised, and seek to ensure that the Privacy Shield is well positioned to continue operating as a valid legal basis for transfers of personal data from the EU to the U.S.

Under the Privacy Shield, an “Annual Joint Review” is conducted by the U.S. Department of Commerce (“Commerce”) and the European Commission (“Commission”), with participation by the FTC, EU data protection authorities and representatives of the Article 29 Working Party, and “other departments and agencies involved in the implementation of the Privacy Shield,” including the U.S. Intelligence Community and the Privacy Shield Ombudsperson for matters pertaining to national security.  Regulators have also indicated that they plan to solicit and incorporate feedback and comments from other Privacy Shield stakeholders as part of the review process, including from self-certified companies and other interested organizations.

Although this is the first annual review, it is important to note that the Privacy Shield has already been the subject of intense public scrutiny.  The draft text of the framework was released in February, several months prior to the final release in July, and a number of stakeholders took the opportunity to comment on the text, leading to several revisions designed to improve and strengthen the Privacy Shield. 
Continue Reading First Annual Privacy Shield Review Will Comprehensively Assess the Framework

The Article 29 Working Party (“WP29”) – the representatives of national data protection regulators in the EU – has issued new guidance on three important aspects of the new General Data Protection Regulation (“GDPR”), which comes into force in May 2018.

This first salvo of GDPR-focused guidance concerns:

  1. the new “Right to Data Portability”, an obligation on companies and public authorities to build tools that allow users to download their data or transfer it directly to a competitor (the guidance is here, and an FAQ is here);
  2. the new obligation for organizations to appoint a “Data Protection Officer”, a quasi-independent role within companies that will be tasked with internal supervision and advice regarding GDPR compliance (guidance / FAQ); and
  3. the new “One Stop Shop” mechanism – helping companies identify which “lead” data protection authority will be their main point of contact for multi-country regulatory procedures (guidance / FAQ).

Despite the guidance having formally been “adopted”, the WP29 is nevertheless inviting stakeholder comments on the new guidance, until the end of January 2017.  Indeed, the guidance takes a number of positions that could attract large volumes of comments ahead of the January 31 deadline.
Continue Reading New EU GDPR Guidance: Data Portability, Data Protection Officers, and the One Stop Shop

On July 8, 2016, the draft EU-U.S. Privacy Shield adequacy decision was formally approved by the so-called “Article 31 Committee” of EU Member States (see press release, here).

That approval opens the door for the College of EU Commissioners to approve the Privacy Shield on Monday (July 11).  Once translated and published in the Official Journal of the EU, the adequacy decision will then enter into force.

However, there may need to be an implementation period during which the EU and U.S. put in place relevant structures; it is expected that Commissioner Věra Jourová will provide more details to the European Parliament on Monday, and in a joint press conference on Tuesday with U.S. Secretary of Commerce Penny Pritzker.

Once that implementation phase is complete, U.S.-based companies will be able to self-certify under the Privacy Shield.  Doing so provides a legal basis which entities in the European Economic Area can rely on to transfer personal data to those Privacy Shield-certified companies in the US.
Continue Reading Privacy Shield Deal Passes Major EU Hurdle

On June 16, 2016, the French data protection authority (“CNIL”) launched a public consultation on the General Data Protection Regulation (“GDPR).   The consultation focuses on four priority themes set out in the Article 29 Working Party’s 2016 Action plan:

  • the data protection officer;
  • the right to data portability;
  • data protection impact assessments; and
  • certification.


Continue Reading The CNIL and EDPS Launch Public Consultations

By Helena Marttila-Bridge

Today, the Article 29 Data Protection Working Party (“Working Party”), a group consisting of representatives from the European data protection authorities, the European Data Protection Supervisor, and the European Commission, published its opinion on the EU-U.S. Privacy Shield draft adequacy decision (“Opinion”) (see here). The Opinion is accompanied by a second document, Working Document 01/2016 on the justification of interferences with the fundamental rights to privacy and data protection through surveillance measures when transferring personal data (“European Essential Guarantees”) (see here). This document sets out EU standards for surveillance by public authorities in the EU and U.S., as formulated by the Working Party. The Working Party also issued a press release (see here). The chairwoman of the Working Party, CNIL President Falque-Pierrotin, presented the documents today in a press conference, a recording of which is available here.

According to the Working Party, the Privacy Shield contains significant improvements compared to the now-defunct EU-U.S. Safe Harbor framework; however, there remain certain concerns and a need for clarification. 
Continue Reading EU Data Protection Authorities Call For Further Clarifications on the EU-U.S. Privacy Shield and Raise Some Concerns

As noted in our post yesterday, the text of the EU-U.S. Privacy Shield, the upcoming trans-Atlantic data-transfer framework between the EU and U.S. to replace the invalidated U.S.-EU Safe Harbor, has been released by the U.S. Department of Commerce.  Commerce’s release coincided with the release of a draft adequacy decision by the European Commission.

A number of the Privacy Shield principles, notably in enforcement, onward transfer, and regular review, are significantly more stringent than the Safe Harbor.  In light of these new obligations, among others, privacy professionals should carefully consider whether this data-transfer framework is right for their companies.

  1. Tougher and Binding Remedies and Enforcement

In addition to FTC enforcement under Section 5, the Principles encourage individuals to bring their complaints directly to the organization at issue, to which the signatory must respond within 45 days.  If the complaint is not resolved, the consumer may bring his or her complaint before an independent dispute resolution body.  The Principles allow signatories to utilize U.S.- or EU-based dispute resolution bodies, or a panel of EU member state data protection authorities (DPAs).


Continue Reading Privacy Shield: Top Five Reasons It’s Tougher Than the Safe Harbor, Whether You Should Certify, and Next Steps