On 9 July, the UK Information Commissioner’s Office (“ICO”) issued a notice of its intention to fine Marriott International, Inc. (“Marriott”) £99,200,396 for alleged infringements of the EU General Data Protection Regulation ( “GDPR”) in connection with a cybersecurity incident notified to the ICO by Marriott in November 2018. The ICO’s public statement followed Marriott’s disclosure of the ICO’s intention to the US Securities and Exchange Commission (“SEC”) and comes just one day after the ICO published its notice of intention to fine British Airways £183.4 million (see our previous blog post here). The proposed fines, if enforced by the ICO, will be the two highest fines levied under the GDPR, to date.

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The UK Information Commissioner’s Office (“ICO”) has issued a notice of intention to fine British Airways following an extensive investigation into the British Airways cybersecurity incident (notified by British Airways to the ICO in September 2018).  The fine of £183.4 million relates to various alleged infringements of the EU General Data Protection Regulation (“GDPR”).
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On 31 May 2019, the Supreme Court of Ireland dismissed Facebook’s appeal of the Irish High Court decision to refer questions regarding, among other things, the adequacy of the EU-U.S. Privacy Shield and the European Commission’s Standard Contractual Clauses to the Court of Justice of the EU (the “CJEU”). The CJEU will hear the case (C-311/18) on 9 July 2019.
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On May 8, 2019, Commissioners from Federal Trade Commission repeated their calls for federal data privacy legislation enforceable by the FTC at a hearing by the House Committee on Energy & Commerce titled “Oversight of the Federal Trade Commission: Strengthening Protections for Americans’ Privacy and Data Security.”
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On 12 February 2019, the European Data Protection Board (“EDPB”)[1] adopted its first opinion on an “administrative arrangement,” which provides a new mechanism for the transfer of personal data between European Union (“EU”) financial supervisory authorities and securities agencies and their non-EU counterparts.

Under the EU’s General Data Protection Regulation 2016/679 (“GDPR”), personal data cannot be transferred from the European Economic Area (“EEA”) to a third country unless the European Commission has decided that such third country is “adequate” from a data protection laws perspective, or “appropriate safeguards” are in place to ensure that the treatment of personal data in the hands of the recipient reflects the GDPR’s high standards. Article 46 of the GDPR provides for various safeguarding options, including the possibility of “provisions to be inserted into administrative arrangements between public authorities or bodies which include enforceable and effective data subject rights.[2] No such “administrative arrangements” have been approved by the EDPB until now.
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In summer 2018, a new Indian Personal Data Protection Bill was released by a Committee of Experts formed under the Chairmanship of Justice B.N. Srikrishna (the “Bill”), accompanied by a report titled “A Free and Fair Digital Economy: Protecting Privacy, Empowering Indians.” After several months’ hiatus, reports are emerging of renewed impetus from India’s Ministry

On February 7, 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]
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In 2018, data privacy and cyber breaches made headlines throughout the year.

Major companies continued to suffer data breaches, highlighting the risks and potential costs of cyber incidents across industries.  At the same time, a growing and overlapping thicket of data security and privacy regulations—within the U.S., European Union, Latin America, and elsewhere—continued to increase

The European Data Protection Board (“EDPB”)[1] adopted its highly anticipated guidelines on the territorial scope of the General Data Protection Regulation (“GDPR”) (the “Guidelines”), which are currently open for public consultation until January 18, 2019.

The extraterritorial application of the GDPR to entities located in non-EU countries marks a significant shift in the legal framework compared to the GDPR’s predecessor (Directive 95/46/EC).

The GDPR’s extraterritorial scope is based on two main criteria described in its Article 3:

  • the “establishment” criterion, according to which the GDPR applies where processing of personal data is undertaken by a person in the context of the activities of an establishment in the European Union regardless of whether the processing takes place in the European Union or not, and
  • the “targeting” criterion, according to which the GDPR applies where processing activities conducted by a person established outside the European Union relate to the offering of goods or services or the monitoring of behavior of data subjects in the European Union.

As a result of these two criteria, businesses which did not previously need to consider the applicability of EU data protection law to their processing activities may now be caught within the GDPR’s territorial scope. The Guidelines  are intended to bring clarity to non-EU businesses doing business with the EU, either directly or through “establishments”, which must undertake a careful assessment of their data processing activities in order to determine whether the GDPR applies. The full text of the Guidelines can be accessed here and their key features are summarized below.
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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.
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