On May 28, 2020, the German Federal Supreme Court handed down its decision in the Planet 49 case regarding the consent requirements for the use of cookies. The decision follows the Court of Justice of the European Union’s preliminary ruling of September 10, 2019. The decision has not yet been published, but the court has issued a press release.

The court decided that the use of pre-ticked boxes was not a valid form of obtaining consent for cookies before May 24, 2018 and remains an invalid way of obtaining consent under the GDPR. The court’s decision applies the German provisions on cookies in the German Telemedia Act which it interprets in light of the EU Directive on Privacy and Electronic Communications (“ePrivacy Directive”).
Continue Reading German Federal Supreme Court Issued Cookie Decision in Planet 49 Case

On September 10, 2019, the Court of Justice of the European Union (“CJEU“) issued its decision in the Planet 49 case.  The case centers on the consent requirements for the use of cookies.

Planet49 GmbH offered an online lottery service for which interested users had to register.  The registration form asked users to tick a

On September 24, 2019, the Court of Justice of the European Union (“CJEU”) adopted a decision on the geographical scope of the right to erasure under the GDPR (decision available here).  The court decided, in line with the opinion of Advocate General Szpunar, that a US-based search engine does not have to remove (de-reference) search results displayed on all the search engine’s versions.  According to the court, it suffices for search results to be deleted from the search engine’s EU versions (i.e., EU domain name extensions, such as .eu, .fr or .de).  For more information on the Advocate General’s opinion, see our prior blog post here.

Continue Reading GDPR’s right to be forgotten limited to EU websites

On March 21, 2019, Advocate General Szpunar released his opinion in the Planet49 case, currently pending before the Court of Justice of the European Union (CJEU).  The case centers on the use of consent for the processing of personal data and consent for the use of cookies.

Planet49 GmbH offered an online lottery service for

On January 14, 2019, the Court of Justice of the European Union (“CJEU”) decided that video recordings of police officers in the exercise of their duties and the uploading of such videos on YouTube may constitute “journalistic activities” in the meaning of the journalism exception of the EU Data Protection Directive (“Directive”) (available here).

On January 10, 2019, Advocate General Szpunar of the Court of Justice of the European Union (CJEU) released his opinion regarding a 2016 enforcement action carried out by the French Supervisory Authority (CNIL) against Google.  In that case, the CNIL ordered Google to de-reference links to webpages containing personal data.  According to the CNIL, the

On January 25, 2018, the Court of Justice of the European Union (“CJEU”) handed down a ruling permitting consumer privacy actions to be brought in the consumer’s home jurisdiction — as opposed to the jurisdiction in which the defendant data controller has its main establishment — but not permitting consumer privacy class actions to be brought in a consumer’s home jurisdiction.

Background

Maximilian Schrems (“Schrems”) — an Austrian resident, lawyer and privacy activist (best known for his involvement in litigation relating to the EU-U.S. Safe Harbor and the EU Model Clauses) — brought a class action against Facebook’s Irish-registered office, before the Austrian courts.  Schrems’ action alleges various breaches of Austrian, Irish, and EU data privacy rules, and includes claims for damages arising from these alleged breaches.

Schrems, a Facebook user of ten years, initially registered with Facebook under a false name for personal purposes only, engaging in typical private uses of the site such as to share photos and posts with his 250 or so Facebook Friends.  Then, in 2011, Schrems created a Facebook page to report on his legal proceedings against Facebook Ireland, reference his lectures and media appearances, advertise his books and solicit public donations.

The Austrian Supreme Court sought a preliminary ruling from the CJEU on two points.

  • Whether Schrems is a “consumer” as defined and interpreted under EU law (namely Article 15 of Regulation No. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters), in relation to his Facebook account, specifically the use of his Facebook page (“the Consumer Issue”).
  • Whether Schrems could bring his action alongside and on behalf other consumers in contractual relationships with Facebook, those consumers numbering more than 25,000 and residing in Austria, other Member States, and outside the EU (“the Class Action Issue”).


Continue Reading CJEU Rejects Consumer Privacy Class Action

On October 3, 2017, the Irish High Court referred Data Protection Commissioner v Facebook Ireland Limited [2016 No. 4809 P.] to the Court of Justice of the European Union (“CJEU”).  The case, commonly referred to as Schrems II, is based on a complaint by Max Schrems concerning the transfer of personal data by Facebook, from Ireland to the United States, using the EU Standard Contract Clauses (“SCCs”).

Background

The SCCs are a European Commission-approved mechanism to legally effect the transfer of personal data from the EEA to third (non-EEA) countries.  The SCCs provide for a contractual arrangement between a EEA-based data exporter and a non-EEA-based data importer of personal data, under which the data importer agrees to abide by EU privacy standards.
Continue Reading Validity of EU Standard Contractual Clauses Referred to CJEU

By Dan Cooper and Rosie Klement

On July 26, 2017, the Court of Justice of the EU (CJEU) published Opinion 1-15 (the “Opinion”) on the proposed agreement between the European Union and Canada on the transfer and processing of passenger name record (“PNR”) data (the “Agreement”).  The Agreement was signed in 2014, but the CJEU was asked to determine whether it was compatible with EU data protection law before it is approved by the European Parliament.

The Opinion concluded that a number of provisions relating to the transfer of PNR data – particularly sensitive data – are incompatible with the EU Data Protection Directive (Directive 95/46) and the fundamental rights to privacy and data protection, and the protection against discrimination, under Articles 7, 8 and 21 of the EU Charter of Fundamental Rights (the “Charter”), meaning the Agreement must be renegotiated before it enters into force.

Notably, the CJEU’s opinion was consistent with its recent judgments concerning data transfers to “third countries” (outside the EEA) in Schrems and Tele2/Watson
Continue Reading CJEU: EU-Canada proposed agreement on the transfer of Passenger Name Record data does not conform to EU data protection law standards

On Wednesday October 19, 2016 the Court of Justice of European Union (“CJEU”) issued its judgment in Case C-582/14, Patrick Breyer v Germany. 

The CJEU held that a “dynamic” IP address constitutes personal data (agreeing with the Opinion of the Advocate General from May this year).  Dynamic IP addresses qualify as personal data, even if the website operator in question cannot identify the user behind the IP address, since the users’ internet service or access providers (“ISPs”) have data that, in combination with the IP address, can identify the users in question.

The CJEU concluded that domestic law — in this case, German law — could not adopt a more restrictive interpretation of the “legitimate interests” legal basis for processing than is set out under the EU Data Protection Directive.  In that vein, the continued processing of personal data, without the user’s consent, may be justified as falling within a legitimate interest — e.g., ensuring the continued security or functioning of those websites including to protect against cyberattacks.
Continue Reading CJEU Confirms Dynamic IP Addresses To Be Personal Data