Photo of Natascha Gerlach

Natascha Gerlach’s practice focuses on electronic discovery and European data protection law.

The following post was originally included as part of our recently published memorandum “Selected Issues for Boards of Directors in 2020”.

Increased regulation continues to be the trend in data privacy law, with 2019 bringing forth a host of new regulations and guidance on existing laws. This year, the pace will not likely

On October 1, 2019, the Court of Justice of the European Union (CJEU) issued a decision outlining the requirements for a user to consent to a service provider’s use of cookies.[1],  The Court held that active consent is required, and thus requiring a user to deselect a pre-checked tracking cookie notice in order to disallow the use of cookies does not sufficiently constitute consent to the collection and use of data under EU law.
Continue Reading

On September 24, 2019[1], the Court of Justice of the European Union (the “CJEU”) handed down its much anticipated follow-on judgment[2] in connection with an individual’s right to have links removed from search results displayed following a search of that individual’s name on Google’s search engine.

Building on its recognition of a “right to de-referencing” in its landmark 2014 Google Spain judgment[3] (establishing the so-called “right to be forgotten” or “RTBF”), the CJEU now further clarified the territorial scope of such right, and limited the de-referencing obligation to Google’s search engine websites corresponding to EU Member States, as opposed to all domain name extensions (e.g., the obligation applies to domain names with top-level domain (“TLDs”) corresponding to EU Member States, such as “google.fr” for France or “google.be” for Belgium). The Court added that Google may need to use, “where necessary”, measures effectively preventing or seriously discouraging an internet user from accessing (on other versions of the search engine, which are not subject to the de-referencing obligation) the links at issue from an EU Member State. As a consequence, Google has no obligation to remove the links at issue on all Google websites worldwide (such as on “google.com”), but may need to implement sufficiently effective measures to prevent Internet users from accessing the links from the EU.
Continue Reading

While the EU General Data Protection Regulation 2016/679 (the “GDPR”) has grabbed headlines due to its extraterritorial reach and administrative fining regime (which permits fines for non-compliance up to the higher of €20 million or 4% of global, annual turnover),[1] a recent decision in the Northern District of California – Finjan v. Zscaler (“Finjan”)[2] – suggests that U.S. Courts won’t view the EU data protection legislation as an absolute obstacle to domestic discovery.  Finjan, as the first post-GDPR ruling of its kind, suggests that it will be business as usual navigating between U.S. civil discovery and EU law, at least from the U.S. courts’ perspective.
Continue Reading

Responding to a request by the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE), the EU’s data protection supervisory bodies released an initial joint opinion on the impact of the U.S. Clarifying Lawful Overseas Use of Data Act (“CLOUD Act”) on the EU data protection framework.

The preliminary assessment by the European

In February of this year the German antitrust agency, the Federal Cartel Office (“FCO”), issued a decision against Facebook regarding their handling of user data. Please see our previous blog-post detailing the FCO’s arguments here

Facebook appealed and on August 26, 2019, the Düsseldorf Court of Appeal (“DCA”) in an interim decision granted suspensive effect to Facebook’s appeal against the FCO decision.

The DCA can order suspensive effect to an appeal if it has serious doubts whether the prohibition decision is legally valid.  Despite the preliminary character of the DCA’s decision, this could represents a significant setback for the FCO and have signaling effect beyond the German borders,. The DCA made certain important points on issues of law, which it will likely not revers during its main proceedings.
Continue Reading

On July 29, 2019, the Court of Justice of the European Union (“CJEU”) issued its judgment in Case C-40/17 (Fashion ID GmbH & Co. KG v Verbraucherzentrale NRW eV). This is a landmark decision regarding the assessment of who has the responsibility for complying with data protection legislation in the context of embedding third-party features that regularly takes place on websites.

The CJEU adopted a broad view of the situations in which a “joint controllership” can arise. It held that, under EU data protection legislation, the operator of a website featuring the Facebook ‘Like’ button (a social plugin that causes the transmission to Facebook of website users’ personal data) can qualify as a controller, jointly with Facebook. Consequently, the website operator is directly responsible for complying with legal obligations in this respect, including by informing its users that their personal data will be transferred to Facebook.

However, the CJEU importantly clarified that the website operator’s role as controller (and the corresponding legal obligations) is limited to the collection and transmission of the data to Facebook and does not include any subsequent personal data processing that Facebook carries out.

The CJEU’s findings will potentially affect third-party technologies other than the Facebook ‘Like’ button, which are often incorporated into websites, such as cookies and pixels.


Continue Reading

On February 6, 2019, the German antitrust agency, the Federal Cartel Office (“FCO”), imposed limitations on Facebook’s current practice of collecting and processing user data and prohibited using the related terms of service.  After an almost three-year long investigation, the FCO found that some of Facebook’s business practices amounted to an abuse of a dominant position.  For the first time, the FCO based its abuse-of-dominance analysis also on whether the dominant company complied with the GDPR – throwing compliance with the GDPR into their competition law assessment.[1]
Continue Reading

Knuddels GmbH & Co KG, a German social media app, has received the first administrative fine issued by a German supervisory authority under the General Data Protection Regulation (“GDPR”).

The fine of € 20,000 has been levied on Knuddels by the Commissioner for Data Protection and Freedom of Information in Baden-Württemberg (one of 16 regional data protection authorities in Germany) following a hack reported by Knuddels in September which resulted in the personal data of approximately 330,000 users being stolen and subsequently published. Such personal data included users’ emails addresses and passwords.
Continue Reading

On October 18, 2017, the European Commission published its report on the functioning of the EU-U.S. Privacy Shield framework (the “Privacy Shield”), marking the conclusion of its first joint annual review of the regime.  The Privacy Shield, which is administered by the International Trade Administration within the U.S. Department of Commerce (“DOC”), provides companies on both sides of the Atlantic with a mechanism to comply with data protection requirements when transferring personal data from the European Union to the United States.  To join the Privacy Shield, a U.S.-based organization is required to self-certify to the DOC and publicly commit to comply with the Privacy Shield requirements.  While joining the Privacy Shield is voluntary, once an eligible organization makes the public commitment to comply with the Privacy Shield requirements, the commitment will become enforceable under U.S. law.
Continue Reading