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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.
Continue Reading COVID-19 Remote Working – GDPR Data Security Checklist

Earlier this year, the Cybersecurity Unit (“CsU”) of the Computer Crime and Intellectual Property Section of the United States Department of Justice released guidance for the private sector entitled “Legal Considerations when Gathering Online Cyber Threat Intelligence and Purchasing Data from Illicit Sources.”  The Guidance (available here) is intended to aid private actors to assess the potential legal exposure under federal criminal law as a result of engaging in common cyber intelligence-gathering activities on the dark web.  Focusing on activity on TOR-based Dark Markets, i.e., “online forums in which computer crimes are discussed and planned and stolen data is bought and sold,” CsU offers practical tips and best practices for legitimate private actors to reduce the risk of liability and other negative repercussions under federal law.[1]
Continue Reading DOJ Issues Guidance on Private Sector Intelligence Gathering Activities on the Dark Web

The UK Supreme Court, in a unanimous decision delivered on April 1,[1] has overturned the decision of the Court of Appeal which had found that Morrisons Supermarkets plc (“Morrisons”) could be held vicariously liable for the unauthorized actions of an employee who had deliberately leaked the personal data of thousands of Morrisons’ employees online. In its judgment, the Supreme Court explained that the Court of Appeal had “misunderstood the principles governing vicarious liability”.[2] For more information on the background of this case and the High Court and Court of Appeal judgments, please see our article here. The full text of the Supreme Court judgment can be read here.
Continue Reading Relief for Employers as Supreme Court Rules no Liability in Morrisons Data Breach Case

On Wednesday, March 11, 2020, the California Attorney General released a second set of modifications (the “March Revisions”) to the proposed regulations implementing the California Consumer Privacy Act of 2018 (the “CCPA”), including substantive changes to both the initial draft regulations issued in October (the “Initial Regulations”) and the revisions published Friday, February 7, 2020…

Efforts to contain COVID-19 have resulted in many employees working remotely for potentially an extended period of time.  While such precautions are in place, it is important to stay vigilant of cybersecurity risks.  There are already reports of COVID-19 related phishing scams and a recent hack of the U.S. Health and Human Services Department amid its pandemic response.  Remote working can exacerbate these risks.  Below is a checklist of key issues to keep in mind on this subject:
Continue Reading Managing Cyber Risk During COVID-19 Response

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.
Continue Reading EDPB Publishes Statement on Privacy Implications of M&A Transactions

On Friday, February 7, 2020, the California Attorney General released an amended set of proposed regulations (supplemented on February 10, 2020) implementing the California Consumer Privacy Act of 2018 (the “CCPA”), including substantial changes to the draft regulations issued in October.  While the revised regulations eliminate certain requirements that businesses found to be onerous and…

On January 27, 2020, the U.S. Securities and Exchange Commission (“SEC”) Office of Compliance Inspections and Examinations (“OCIE”) issued examination observations related to cybersecurity and operational resiliency practices (“Examination Observations”). The observations highlight a set of best practices by market participants in the following areas:  (1) governance and risk management, (2) access rights and controls, (3) data loss prevention, (4) mobile security, (5) incident response and resiliency, (6) vendor management and (7) training and awareness.  Cybersecurity has been a key priority for OCIE since 2012.  Since then, it has published eight cybersecurity-related risk alerts, including an April 2019 alert addressing mobile security. OCIE has perennially included cybersecurity practices as part of its examination priorities (“Examination Priorities”) and listed all but mobile security as “particular focus areas” in the “information security” priority for 2020. 
Continue Reading OCIE Cybersecurity and Resiliency Observations and Best Practices

In 2019, boards and senior management across a range of industries continued to cite cybersecurity as one of the most significant risks facing their companies.

At the same time, comprehensive data privacy regulation became a new reality in the United States as many companies implemented major revisions to their privacy policies and data systems to…

The UK Information Commissioner’s Office (“ICO”) issued its first penalty notice under the GDPR in December 2019.  Despite publishing notices of its intention to fine Marriott and British Airways in July 2019, the ICO has not yet taken its final enforcement action in these cases (and it is understood that the ICO has granted an extension for representations by the companies, until March 2020).  The £275,000 fine levied on Doorstep Dispensaree, a pharmaceutical company that provides various prescription medicines to care homes in the UK, therefore provides the first insight into the ICO’s approach to administrative fines under the GDPR (as further described below).
Continue Reading UK ICO Finally Issues GDPR Fine