General Data Protection Regulation (GDPR)

On September 7, 2020, the German data protection supervisory authority for Baden-Wuerttemberg (“DPA-BW”) released new guidelines following the Schrems II judgment on how companies should transfer data to third countries. For a more in-depth summary of the CJEU’s Schrems II decision, please see our previous blog post here and our audiocast episode here.
Continue Reading New Guidelines for Companies from German Supervisory Authority (DPA-BW) following Schrems II

On October 1, 2020, the Hamburg Data Protection Authority (“Hamburg DPA”) fined H&M, the Swedish clothing company, over €35 million for illegally surveilling employees at its service center in Nuremberg.  This fine is the largest financial penalty issued by a German DPA to date for a violation of the European General Data Protection Regulation (“GDPR”), and the second highest in Europe issued by any DPA (although other DPAs have announced their intention to issue other larger fines).
Continue Reading H&M Receives Record-Breaking Fine for Employee Surveillance in Violation of the GDPR

On 10 September 2020, the UK Information Commissioner’s Office (“ICO”) published its beta-phase “Accountability Framework” (“Framework”).  The Framework is designed to assist organisations, of any size and across all sectors, in complying with the accountability principle under the GDPR and in meeting the expectations of the ICO.

The Framework will help those within organisations who are responsible for implementing data protection compliance strategies.  The ICO envisages that organisations will use the Framework in conjunction with other relevant guidance and materials available from the ICO.  The ICO emphasises that each organisation must be mindful of its own circumstances when managing data protection risks, and that a “one size fits all” approach should not be adopted.
Continue Reading UK Information Commissioner’s Office Publishes Draft Accountability Framework Tool

On 16 July, 2020, the Court of Justice of the EU (“CJEU”), issued its decision in the Schrems II case.  In short, the CJEU invalidated the EU-U.S. Privacy Shield and clarified that the use of standard contractual clauses (“SCCs”) requires data controllers to conduct a case-by-case assessment of the level of data protection that SCCs can provide, taking into account the nature of the personal data transfer(s) and the country of destination.  For a more in-depth summary of the CJEU’s decision, please see our blog post here and our audiocast here.

Now, almost two months after the decision, it is an opportune time for businesses to take stock of what exactly happened and assess the practical implications of the judgement.  The result of this impact analysis may be underwhelming for some.  So far, European regulators have been mostly silent (save a few exceptions[1]) and have not issued any actionable guidance to speak of.  In all fairness, the obligations imposed by the CJEU’s judgement may be just as daunting for regulators to apply in practice as for businesses.  As a result, companies and practitioners are left grappling with what exactly they should do in the aftermath of this decision.

In this blog post, we set out some recommendations for immediate and long-term actions that businesses may want to consider implementing.  Note, however, that much depends on the nature of the personal data transfers concerned.  As can be gleaned from the CJEU’s judgement, some transfers are more sensitive than others, and some sectors are more sensitive than others (in particular, the electronic communications sector).  These risk-based considerations should inform how businesses prioritize remedial actions going forward.Continue Reading Life After Schrems II: Practical Recommendations In An Uncertain Time

The Court of Justice of the European Union’s recent decision in the “Schrems II’ case was one of the most highly anticipated decisions in the world of data privacy, striking down the EU-U.S. Privacy Shield, but upholding the validity of standard contractual clauses.

Tune in to the first episode of…
Continue Reading Inside Privacy Audiocast: Episode 1 – Post-Schrems II: Paving A Way Forward

Today, the Court of Justice of the European Union issued a landmark decision striking down the EU-U.S. Privacy Shield—an agreement between EU and U.S. authorities authorizing transfers of EU personal data to the United States—but upholding the validity of standard contractual clauses (“SCCs”), another mechanism that EU-based organizations use to transfer data internationally. Covington represents BSA | The Software Alliance (“BSA”) in the case, and key aspects of BSA’s arguments on the validity of SCCs were reflected in the Court’s decision.
Continue Reading EU’s Highest Court Strikes Down Privacy Shield But Upholds Other Key International Data Transfer Mechanism

On June 24, 2020, the European Commission (“Commission”) published its much-anticipated assessment of the EU’s General Data Protection Regulation (“GDPR”) two years after it went into effect.  The assessment takes into account contributions from the European Council, the European Parliament, the European Data Protection Board (“EDPB”), individual supervisory authorities, the Multi-Stakeholder Expert Group and other stakeholders.  The assessment considers a wider scope of issues surrounding GDPR implementation beyond international transfers and the cooperation and consistency mechanisms, the two topics the Commission is specifically tasked to consider under Article 97 of the GDPR.

The Commission’s overall conclusion is that the GDPR has successfully achieved its objectives of enhancing the protection of personal data and improving the free flow of personal data within the EU.  The Commission specifically highlights the key role that the GDPR plays in the EU’s “human-centric approach to technology,” and notes that it will serve as a guiding legal framework for the EU as it rolls out its broader Data Strategy.  The Commission also notes the impact that the GDPR has had worldwide, inspiring new or elevated standards for data protection in many countries, and serving as a “global standard-setter” for regulating the digital economy.

Notwithstanding these achievements, the Commission also makes clear that there are a number of areas for improvement.Continue Reading European Commission Publishes 2-Year Report on the Implementation of the GDPR

On June 8, 2020, the Belgian Supervisory Authority (“SA”) fined a (then ex-) politician €5,000 for sending political marketing materials without an appropriate legal basis.  Although the fine was not massive, the case is interesting for another reason: the complaint was brought not by the individuals who received the marketing materials, but by their employer.

According to the SA, the politician exploited the employee list of a local Commune to identify recipients to whom the marketing materials would be sent.  It is not clear how the politician obtained the list.  When the Commune discovered that the list had been leaked, it notified a security breach to the SA and, at the same time, lodged a complaint against the politician.Continue Reading Belgian SA Decision on Lodging GDPR Complaints

On May 25, 2020, the second anniversary of the GDPR, the Belgian Supervisory Authority (“SA”) released an overview of its first full year of activity (available in French here, and in Dutch here).  To be clear, this was not a delay in reporting, but rather shows that the Belgian legislature was late in creating its oversight and enforcement authority for data protection.

According to the activity overview, the SA has received over 900 security breach notifications and around 350 complaints.  It has performed over 100 inspections and imposed 59 sanctions, 9 of which resulted in fines for a total of €189,000.  In fact, the SA has imposed the bulk of these fine amounts only in the last two months.Continue Reading Belgian Supervisory Authority’s GDPR Track Record So Far

On May 4, 2020, the European Data Protection Board (“EDPB”) updated its guidelines on consent under the GDPR.  An initial version of these guidelines was adopted by the Article 29 Working Party prior to the GDPR coming into effect, and was endorsed by the EDPB on May 25, 2018.
Continue Reading Updated EDPB Guidelines on Consent and Implications for Cookies