General Data Protection Regulation (GDPR)

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On July 15, 2021, the Belgian Supervisory Authority (“SA”) released a 40-page draft recommendation on the use of biometric data and launched a public consultation to solicit feedback about it.

Most notably, the SA points out that there is no valid legal basis other than explicit consent (with all the GDPR limitations attached to it) that would enable the processing of biometric data for authentication purposes (e.g., security), because Belgian lawmakers failed to adopt the required national legislation to supplement the GDPR (specifically, to underpin the public interest exception found in Art. 9(2)(g) GDPR for processing sensitive personal data).  The SA considers this outcome a departure from the rules that applied prior to the GDPR, and will therefore allow a one-year grace period to give controllers and lawmakers sufficient time to address the issue.

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Continue Reading Belgian Supervisory Authority Launches Public Consultation on the Use of Biometric Data

On July 5, 2021, the Italian Supervisory Authority (“Garante”) announced that it has fined Foodinho S.r.l. (“Foodinho”) 2.6 million EUR for its use of performance algorithms in connection with its employees. The authority held Foodinho in breach of the principles of transparency, security, privacy by default and by design, and held it responsible for not implementing suitable measures to safeguard its employees’ (i.e., riders’) rights and freedoms against discriminatory automated decision making. The Garante’s decision is the first of its kind in the realm of the algorithmic management of gig workers. According to the Garante, Foodinho’s management violated Article 22(3) of the GDPR.…
Continue Reading Italian Supervisory Authority Fines Foodinho Over Its Use of Performance Management Algorithms

On June 15, 2021, the Court of Justice of the European Union (“CJEU”) rendered a decision (press release here, full judgment here) addressing whether a European supervisory authority (“SA”) that is not the “Lead SA” (as defined in Article 56 GDPR) has competence to bring a case for an alleged violation of the General Data Protection Regulation (“GDPR“) before a national court in instances where the alleged violation involved the processing of personal data across multiple EU Member States.  In such scenarios, a controller with a main establishment in Europe will typically seek to benefit from the so-called “one-stop-shop” principle under Article 56 GDPR, meaning the controller would need to answer to only one SA rather than be subject to enforcement actions brought by numerous SAs.…
Continue Reading CJEU Decides on Competence of Supervisory Authorities to Bring Cases Before National Courts under the GDPR

Today, June 4th, 2021, the European Commission (“Commission”) published the final version of its new standard contractual clauses for the international transfer of personal data (“SCCs”) (see here).  While the final version retains much of the language of the draft version released in November 2020 (see here), it includes several notable updates.  When finalizing the SCCs, the Commission took into account the joint opinion of the European Data Protection Board (“EDPB”) and the European Data Protection Supervisor, feedback submitted by stakeholders during the public consultation period, and the opinions of EU Member States’ representatives.

In this blog post, we identify several key features of the new SCCs that organizations should keep in mind when preparing to implement them in contractual agreements going forward.

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Continue Reading European Commission Publishes New Standard Contractual Clauses

On May 19, 2021, the Italian Supervisory Authority (“Garante”) fined a physician €5,000 for publishing a patient’s medical records without obtaining that patient’s specific consent to do so.  As background, the physician downloaded medical records about a patient she treated at a local hospital from the hospital’s online archive system, including images taken during surgery.  The physician used these records for a presentation at a medical conference, and also included them as documentation supporting a scientific research paper she submitted for a competition hosted by a surgeons’ association.  The physician’s paper was ultimately selected as the winner of that competition, resulting in the publication of her work on the association’s website.…
Continue Reading Italian Supervisory Authority Fines Physician for Secondary Use of Patient Data Without Specific Consent

On February 18, 2021, the District Court of Berlin overturned a €14.5 million fine that had been imposed on German real estate company Deutsche Wohnen SE.  The Court held that the fine – which was issued by the Berlin Supervisory Authority (“SA”) and had been the second highest fine in Germany so far under the EU General Data Protection Regulation (“GDPR”) – failed to satisfy certain rules under German law, and therefore was invalid.

This case raises important questions on the interplay between the GDPR and German law regarding the attribution of regulatory offenses to a company.  In this blog post, we consider this topic in greater depth and how it may eventually be resolved in court.

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Continue Reading German Court Overturns GDPR Fine, Raises Legal Questions About Fines Against Companies

In January 2021, the French Supervisory Authority (“CNIL”) published a summary report of contributions it received in response to a public consultation and survey on the digital rights of minors launched in April 2020 (see the press release here and a summary report here, both in French).  Stakeholders who responded to the consultation included companies, professionals dedicated to the legal and educational issues related to children, parents and minors.
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Continue Reading French Supervisory Authority Publishes Results of Public Consultation on the Digital Rights of Minors

In February 2021, the European Commission (“Commission”) released a report on European Union (“EU”) Member States’ laws governing the processing of health data.  The report discusses three general types of health data uses:

  • primary use for health care services;
  • secondary use for public health purposes; and
  • secondary use for scientific research purposes.

For each of these general purposes, the report assesses real-world use cases.  For example, for health care services, the report considers e-health applications, among others.  For public health purposes, the report considers pharmacovigilance and product approvals.  The section on scientific research purposes, meanwhile, considers issues such as research by public bodies, sharing of data with third-party researchers, and the use of genetic data.

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Continue Reading European Commission Publishes Report on EU Member States’ Rules in Relation to Health Data

Until now, damages claims awarded by German courts pursuant to Article 82 of the General Data Protection Regulation (“GDPR”) – in particular, claims for non-material damages – have been relatively low.  This restrained approach thus far has been predicated primarily on the position that German law requires a serious violation of personality rights to justify higher claims for non-material damages.  Two recent cases decided by regional courts illustrate and confirm this prevailing stance.  However, a more recent decision issued by the Federal Constitutional Court indicates that views in Germany may be evolving on this topic, and courts may soon be willing to entertain higher damages claims.
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Continue Reading A New Day for GDPR Damages Claims in Germany?

On February 3, 2021, the Conference of the Supervisory Authorities (“SAs”) of Germany (known as the Datenschutzkonferenz or “DSK”) published minutes from its meetings held in November 2020 (available here, in German).  The minutes include discussions about how the German SAs plan to enforce the recent Schrems II ruling of the Court of Justice of the European Union (“CJEU”).  Notably, the Berlin SA (coordinator of the DSK’s Schrems II task force) sought consensus to ensure a joint enforcement approach.
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Continue Reading German Supervisory Authorities Plan to Circulate Questionnaires on Personal Data Transfers in Wake of Schrems II Decision