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On Friday, March 15, 2019, the U.S. Federal Trade Commission (“FTC”) issued its 2018 Privacy & Data Security Update (the “Update”) detailing its activities last year in seven “zones” of privacy and data security: enforcement, advocacy, rules, workshops, reports and surveys, consumer education and business guidance, and international engagement.  Continue Reading Federal Trade Commission Issues 2018 Privacy and Data Security Update

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. Continue Reading EDPB Issues First Opinion on Administrative Arrangements Under the GDPR for Cross-Border Data Flows Between EU and Non-EU Securities Agencies

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 of Electronics and Information Technology (“MEITY”) for the Bill to be put before Parliament.

The proposed introduction of the Bill continues a global trend in the revision of data protection laws: from California to Canada, from Bahrain to Brazil, many jurisdictions have recently proposed, or are in the process of adopting, new, stricter data protection legislation that, to varying degrees, bears the hallmarks of the recently-effective EU General Data Protection Regulation (“GDPR”).

As the global data protection map evolves, what should multinational organisations do to remain compliant? National legislatures are contributing to a global patchwork of data protection policy and each new law has been shaped by different political and cultural motivations. Consequently, areas of incompatibility between regimes are becoming visible.

This article recaps on the key provisions of the proposed Bill, examines potential incompatibilities with the GDPR, and concludes with what this means for multinational organisations who may be required to navigate both frameworks.

Please click here to read the full article.

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] Continue Reading Germany Limits Facebook’s Data Collection and Processing, Refers to GDPR

On January 25, 2019, the Illinois Supreme Court held in Rosenbach v. Six Flags Entertainment Corporation that plaintiffs are not required to allege actual harm in order to seek damages against private entities under the state’s Biometric Information Privacy Act (BIPA).  BIPA regulates companies’ collection, retention, and disclosure of biometric identifiers.  It further provides a private right of action for persons “aggrieved” by a violation of the Act for recovery of liquidated damages, injunctive relief, attorneys’ fees, and costs.  By allowing suits for technical violations of BIPA’s notice and consent provision to go forward, the Rosenbach decision will likely encourage the filing of new cases under the Act and may influence the interpretation of data privacy laws in other states. Continue Reading Illinois Supreme Court Rules Plaintiffs Are Not Required to Allege Actual Injury to Sue Under the Biometric Information Privacy Act

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. Continue Reading EDPB Publishes Draft Guidelines on the Territorial Scope of the GDPR

On November 21, 2018, in Dittman v. UPMC d/b/a The University of Pittsburgh Medical Center, the Supreme Court of Pennsylvania held that an employer has a legal duty to exercise reasonable care to safeguard its employees’ sensitive personal information stored on an internet-accessible computer.[1] Dittman is notable because it is the first time a state’s highest court has broadly held that a company owes a duty to its employees to protect their personal data that it collects and stores. Also, by rejecting the economic loss doctrine, the court opened the door to the potential recovery of pecuniary damages in data breach cases alleging a negligence theory. If the holding of Dittman is adopted by courts in other states, employers could face increased risk of financial liability following a data breach that compromises personal information of employees. Continue Reading Pennsylvania’s Highest Court Rules that Employers Have a Duty to Guard Their Employees’ Personal Data

On November 27, 2018, the Senate Commerce, Science, and Transportation Committee’s Subcommittee on Consumer Protection, Product Safety, Insurance, and Data Security held an oversight hearing of the U.S. Federal Trade Commission.  The hearing marked the first appearance before the Senate of the full slate of current FTC commissioners: Republicans Chairman Joe Simons, Noah Phillips, and Christine Wilson, and Democrats Rohit Chopra and Rebecca Slaughter.  In addition to confirming that the FTC will continue to prioritize data security and privacy enforcement under its consumer protection mandate, the commissioners were unanimous in their support for comprehensive federal data privacy legislation to be enforced by the FTC.  Each, however, offered slightly different views as to the right approach for potential legislation and future enforcement. Continue Reading FTC Chair, Commissioners Endorse Comprehensive Privacy Legislation at Senate Oversight Hearing

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 First German Fine Issued Under the GDPR

On November 6-8, 2018, the U.S. Federal Trade Commission (“FTC”) hosted a public hearing on “Privacy, Big Data, and Competition.”  The event was part of a series of public hearings on Competition and Consumer Protection in the 21st Century, modeled after the agency’s 1995 “Pitofsky Hearings.”  The series solicits input from a wide variety of private and public sector stakeholders and academics to inform and guide the FTC’s regulatory and enforcement efforts in light of broad economic changes, evolving business practices, new technologies, and international developments. Continue Reading Consumer Protection and Antitrust Regulators, Experts Discuss Privacy, Big Data, and Competition at FTC Hearings