Colorado is set to become the third state in the nation to enact comprehensive privacy legislation with the passing of SB 21-190, more commonly known as the Colorado Privacy Act (“ColoPA” or the “Act”). Governor Jared Polis is expected to sign the ColoPA into law in the coming days, after which
ADGM enacts new Data protection Regulations 2021
On 11 February 2021, the Abu Dhabi Global Market (“ADGM”), Abu Dhabi’s financial free zone, enacted the new Data Protection Regulations 2021 (the “Regulations”), replacing the Data Protection Regulations 2015 in their entirety and bringing the ADGM regime closer to the European Union’s data protection regime under the General Data Protection Regulation (“GDPR”).
Our alert memo, published at the end of 2020 following the ADGM’s opening of a public consultation period on the draft Data Protection Regulations 2020 (the “Draft Regulations”), provides an overview of the key features of the Draft Regulations, areas of overlap with the GDPR, as well as certain proposed departures from the GDPR that will need to be monitored by organisations doing business in both the ADGM and the European Union.
The Regulations are applicable to those processing personal data where a controller or processor has been established in the ADGM, regardless of whether the processing actually takes place in the ADGM or not.
We set out below an update to our alert memo, highlighting the few notable additions/amendments to the Draft Regulations as compared with the final Regulations published on 11 February 2021.…
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Ready to Pounce: Regulators Are Intensifying GDPR Enforcement
After what appears to be a period of relative leniency in 2018/19, enforcement actions for violations of the EU General Data Protection Regulation (“GDPR”) have since intensified. In 2020, according to publically available information, supervisory authorities across the EU and the UK Information Commissioner’s Office (“ICO”) have issued over EUR 170 million worth of fines combined, with six of the top ten individual fines imposed being issued in 2020.
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UK ICO Data Breach Fines – What Can We Learn From British Airways and Marriott?
In July 2019, the UK Information Commissioner’s Office (“ICO”) issued two notices of intent (“NOIs”) to fine British Airways (“BA”) and Marriott International Inc. (“Marriott”) for violations of the EU General Data Protection Regulation (“GDPR”), both related to high-profile personal data breaches. The NOIs proposed staggering fines of £183.39 million and £99.2 million, respectively, which would have constituted the largest penalties levied under the GDPR to date. More than a year later, the UK ICO finally issued the long-awaited penalty notices in relation to both investigations, imposing in both cases fines that, while still significant, were greatly reduced from what had initially been indicated – £20 million in the case of BA (a massive reduction of more than £163 million), and £18.4 million in the case of Marriott (an equally surprising reduction of more than £79 million).
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Recommendations of the EDPB Further to the CJEU’s Schrems II Judgment: One Step Forward, Two Steps Back?
Recommendations 01/2020 of the European Data Protection Board (the “EDPB”) on measures that supplement transfer tools to ensure compliance with the EU level of protection of personal data (the “Recommendations”) attempt to provide a step-by-step roadmap to help EU data exporters transfer personal data outside the EU to third countries in a manner consistent with the judgment of the Court of Justice of the European Union (the “CJEU”) handed down on July 16, 2020, in Data Protection Commissioner v. Facebook Ireland and Maximillian Schrems (“Schrems II”, further described in Section 1 below). The Recommendations were published on November 11, 2020 and can be relied upon immediately, even though they are subject to public consultation, with comments being due prior to December 21, 2020.
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Schrems II: The CJEU Declares EU-U.S. Privacy Shield Invalid, Upholds the SCCs And Calls On 27 Supervisory Authorities to Ensure Their Compliance
In a highly-anticipated landmark judgment handed down on July 16, 2020, the Court of Justice of the European Union (the “CJEU”) in Data Protection Commissioner v. Facebook Ireland and Maximillian Schrems (“Schrems II”, summarised in part 3. below and the full text of which can be accessed here) has:
- invalidated the European Commission Decision 2016/1250 on the adequacy of the protection provided by the EU-U.S. Data Protection Shield (the “EU-US Privacy Shield”) for transfer of personal data from the EU to entities certified under the mechanism located in the United States;
- upheld the European Commission Decision 2010/87 on standard contractual clauses for the transfer of personal data to processors established outside the EU (the “SCCs”); and
- reminded that a transfer of data based on SCCs may be challenged before the competent supervisory authority, which has to “suspend or prohibit”, on a case-by-case basis, any such transfer when, in its view, the SCCs “are not or cannot be complied with.”
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Cookie Walls and Scrolling Don’t Make the Grade – EDPB Clarifies Guidance on Consent Under GDPR
On May 4, 2020 the European Data Protection Board (“EDPB”) updated the guidelines on consent under the EU General Data Protection Regulation 2016/679 (the “GDPR”). The guidelines were originally published by the Article 29 Working Party on April 10, 2018 and later endorsed by the EDPB. The full text of the updated EDPB guidelines can be read here.
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The Dilemma of the Part-Time DPO – Lessons Learned from the Proximus Decision of the Belgian Data Protection Authority
On April 28, 2020, the Belgian data protection authority (the Gegevensbeschermingsautoriteit / Autorité de protection des données, the “Belgian DPA”), handed down a decision imposing a €50,000 fine on Proximus, Belgium’s largest telecommunications operator, on the ground that Proximus had failed to protect its data protection officer (“DPO”) from conflicts…
COVID-19 Remote Working – GDPR Data Security Checklist
As many organisations adjust their business operations as a result of the COVID-19 pandemic, network and data security are in the spotlight. The significant increase in remote working, brings unique challenges and organisations must remain mindful of their legal obligations to keep personal data secure. In particular, the EU General Data Protection Regulation (“GDPR”) imposes a general obligation upon data controllers and processors to ensure the security of data processing against accidental or unlawful loss, damage, destruction, alteration or disclosure.
Controllers and processors must have in place appropriate technical and organisational measures to ensure a level of security for personal data that is commensurate to the risk associated with data processing. This is not a static analysis, but something to be kept under review as circumstances change. The mass shift to remote working has inevitably changed the risk profile of certain data processing activities. Set out below is a summary of important considerations from a data security standpoint, taking into account the GDPR’s requirements as well as guidance from data protection supervisory authorities in the UK, France, Belgium, Germany and Italy.
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EDPB Publishes Statement on Privacy Implications of M&A Transactions
On February 19, 2020 the European Data Protection Board (“EDPB”) published its second statement on privacy in the context of corporate transactions.
The statement, the full text of which can be read here, highlights the existence of concerns related to the combination and accumulation of sensitive personal data and the possibility that such combinations could result in a high level of risk to the fundamental rights to privacy and the protection of personal data.
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