On March 12, 2019, the European Data Protection Board (“EDPB”) issued an opinion in response to a series of questions about the competences, tasks and powers of European supervisory authorities for data protection (“SAs”), when the processing of personal data triggers the material scope of both the ePrivacy Directive and the General Data Protection Regulation

On September 5, 2017, the Grand Chamber of the European Court of Human Rights (“ECtHR”) issued its ruling on appeal in the case of Bărbulescu v. Romania, concerning alleged unlawful workplace monitoring of Mr. Barbulescu’s private communications.

Overturning the ECtHR’s prior ruling in the case (covered by Inside Privacy here), the Grand Chamber held that Romanian courts had not adequately and fairly weighed up the competing interests of Mr Barbulescu and his employer.  That defect of justice meant that Romania had failed to proactively protect Mr Barbulescu’s right to privacy, as required by its membership of the European Convention on Human Rights.

The Grand Chamber held that Mr Barbulescu’s right to privacy extended to his workplace, despite his private use of a work computer constituting a breach of his rules of employment.  The Grand Chamber held that while privacy in the workplace can be restricted “as necessary,” “an employer’s instructions cannot reduce private social life in the workplace to zero,” since the right to privacy does not necessarily depend on an individual’s reasonable expectations, and can be enjoyed in public and in the workplace, notwithstanding prohibitions and warnings given to the individual.  A fulsome balancing exercise was therefore required in cases such as these.

The Grand Chamber underlined that provided national courts undertake an adequate balancing exercise, they have some discretion as to the actual result (i.e. whether the employer’s or employee’s rights prevail in a given case).  Similar discretion is also enjoyed by national legislators and constitutions when setting underlying rules on workplace privacy, provided such rules – and a means to enforce them – are actually in place.

Nevertheless, the ruling states that workplace monitoring must always be limited to what is necessary for a legitimate purpose, and should be accompanied by a range of safeguards, normally including prior notice to employees – particularly when the content of communications is concerned.
Continue Reading New Ruling in European Employee Monitoring Case

On Thursday, April 20th, the UK government launched a “Call for Views” regarding the UK’s options for the implementation of the new EU General Data Protection Regulation (GDPR) at national level.  The consultation deadline is May 10th, at mid-day UK time.

Although the GDPR was an effort to bring greater harmonization to data protection regimes throughout the EU, it nevertheless contains a number of areas in which national laws can deviate from its default position – for instance to permit researchers to store and use health data without having to repeatedly seek consents, or to ensure that freedom of expression is not unfairly curtailed by the “right to be forgotten.”
Continue Reading UK Starts 3-Week Consultation on GDPR Implementation

By Luca Tosoni and Dan Cooper

On 2 February 2017, the Italian DPA (“Garante”) imposed a record fine of 5,880,000 Euros on a UK company operating in Italy for its violation of the data privacy consent rules contained in Italian law.  This is the largest data privacy fine ever issued by a European data protection authority for a breach of the EU’s data protection framework.

The Garante imposed the fine on a company that allegedly made money transfers to China on behalf of individuals without their knowledge or agreement, and therefore did not obtain the individuals’ consent to the processing of their data.

The size of the fine reflects, in part, the fact that a significant number of data subjects were impacted by the breach.  In fact, the Garante concluded that the company had committed a separate privacy violation for each data subject whose data was used without consent.  The fine therefore reflects the sum total obtained from adding up the fine for each individual breach committed by the company.
Continue Reading Italian DPA Issues Record Data Privacy Fine

On January 12, 2017, the U.S. Federal Trade Commission announced the adoption of a Swiss-U.S. Privacy Shield, to replace the existing Swiss-U.S. Safe Harbor Agreement.  Companies have a three month grace period to switch from the old to the new regime.

The Swiss version of the Privacy Shield had to be negotiated following the invalidation

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 August 31, 2016, a bill was presented to the Luxembourg Parliament (the “Bill”) to amend the Law of August 2, 2002, on the Protection of Persons with regard to the Processing of Personal Data.

The Bill aims to reduce the current administrative burden and anticipates the application of the General Data Protection Regulation (“GDPR”)

As announced last week, the European Data Protection Supervisor (“EDPS”) released on September 23, 2016 an opinion on “coherent enforcement of fundamental rights in the age of big data.”  This opinion follows an earlier Preliminary Opinion on privacy and competitiveness in the age of big data, published in 2004 (see our previous blog post here).

According to the EDPS, data-driven technologies and services are important for economic growth, but the users of those services are generally unaware of the nature and extent of the “covert tracking”  that fuels the sector.  The growing imbalance between consumers and service providers would diminish choice and innovation and threaten the privacy of individuals.  In fact, the rights of individuals enshrined in the EU Charter of Fundamental Rights would be threatened by “normative behavior and standards that now prevail in cyberspace.”    At the same time, EU rules on data protection, consumer protection, and antitrust and merger control are applied in silos, despite their common objectives.
Continue Reading EDPS Issues Opinion on Big Data and Enforcement

The EU-U.S. Privacy Shield’s recent introduction has created an efficient mechanism to ensure that trans-Atlantic personal data flows are lawful.  With that in place, attention is now turning back to restrictions within the EU, particularly around hosting data in cloud computing services.

European healthcare is particularly affected by such restrictions.  This has motivated a significant group of organizations and policymakers to come together and launch a collective “call to action” to European policymakers, urging greater support and reforms to enable broader use of cloud computing in healthcare.  The Call to Action was previewed at eHealth Week 2016 in June.
Continue Reading EU Organizations Call for More Support for Cloud Computing in Healthcare

On May 12, 2016, EU Advocate General (“AG”) Manuel Campus Sanchez-Bordona issued an Opinion in Case C-582/14 Patrick Breyer v Germany, which is pending before the EU’s highest court (the Court of Justice).  The Court is not legally bound by this Opinion, but in practice often follows the opinions of its Advocate Generals in its rulings.  See here for the German language version; an English version is awaited.

The AG essentially considered that 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 access providers have data which, in connection with the IP address, can identify the users in question.

The AG went on to consider that the collection and use of IP address data, for the purpose of ensuring the functioning of the website, might be justified on the basis of the “balancing of legitimate interests” test under the EU Data Protection Directive 95/46/ EC (the “Directive”), notwithstanding more restrictive national rules in Germany.

If followed by the Court of Justice, the Opinion will have broad implications for EU data protection law, even the forthcoming General Data Protection Regulation (the “GDPR”).  In particular, the Opinion will be relevant for any industries that handle de-identified personal data, and re-confirms the limits that national legislators need to respect when deviating from EU-level data protection legislation.


Continue Reading EU Advocate General Considers Dynamic IP Addresses To Be Personal Data