Global Data & Privacy Update - February 2019

Welcome to the February Global Data & Privacy Update. This update is dedicated to covering the latest legislative developments affecting the way data is managed and protected, as well as reporting on the most recent news governing data breaches and industry developments.

Written by Mark Williamson, Isabel Ost and Charlotte Gatland

GDPR statistics

To celebrate Data Protection Day 2019, the European Commission has released an infographic that contains some interesting statistics about the GDPR since it came into force last year. These include:

• the most common types of complaints reported to data protection supervisory authorities are phone marketing, email marketing and video surveillance;
• investigations are usually initiated by a data protection supervisory authority because of an individual's complaint;
• the overall number of complaints made to supervisory authorities is more than double the number of data breach notifications;
• 5 EU member states have not yet passed a national law to state the permitted exemptions they wish to make from the GDPR; and
• during May 2018 GDPR was searched for more than Beyoncé on Google.

Click here to see the infographic from the European Commission.

Government Guidance on Amendments to Data Protection Law under a No-Deal Brexit

The UK Government has released guidance on its proposed amendments to the GDPR and UK Data Protection Act 2018 in the case of a no-deal Brexit.  The guidance states that the fundamental principles, obligations and rights that organisations and data subjects have become familiar with will stay the same, but the changes proposed are necessary in order to ensure, among other things:

• EU GDPR standards are preserved in domestic law;
• the extraterritorial elements under Article 3 of the GDPR are retained so that UK data protection legislation applies to companies based outside of the UK in certain circumstances. The amended legislation will also require companies not established in the UK but in scope of the UK data protection legislation to appoint a UK based representative in certain circumstances, in line with current GDPR obligations;
• adequacy decisions in the EU at the point of exit remain valid so that UK companies can continue to export personal data to those countries without the need to implement further safeguards;
• all EEA countries and Gibraltar are recognised as having an adequate level of protection to allow data flows from the UK to Europe to continue following a no-deal Brexit without the need for UK companies to implement further safeguards;
• standard contractual clauses currently issued by the European Commission continue to be considered an appropriate safeguard under UK law; and
• Binding Corporate Rules that have already been authorised by the ICO continue to be recognised.

However, the guidance notes that UK companies will still need to consider appropriate safeguards for transfers of personal data from the EEA to the UK on the basis that the EU will not have granted the UK an adequacy decision prior to the date of a no-deal Brexit.

Click here to read the Government's guidance.

EDPB Work Program 2019-2020

The European Data Protection Board (EDPB) has released a plan of work for the next two years. This work program includes:

• publishing:
  • guidelines on:
    • delisting (a request for online search results to be deleted)
    • data subject rights, including the limitations on such rights
    • connected vehicles
    • targeting of social media users
    • territorial scope (in finalised form following the consultation period)
  • opinions on standard contractual clauses for international transfers, where draft clauses have been disseminated by supervisory authorities
  • their Enforcement Strategy
• updating advice on:
  • the concepts of controller and processor
  • the notion of legitimate interest
• activities relating to:
  • the ePrivacy Regulation (still to be finalised, replacing the Privacy and Electronic Communications Directive)
  • the Privacy Shield review

Click here to read the EDPB's full work program for 2019 to 2020.

ICO and FCA Memorandum of Understanding

The ICO and FCA have signed a memorandum of understanding (MoU) setting out how they intend to co-operate going forward. The MoU builds on the last document, signed in 2014, to set out more ways in which both will work together pursuant to each regulator's legislative remit, including the recently enforced data protection legislation.

The MoU goes further than the last signed memorandum by suggesting ways both the ICO and FCA might, in their discretion, decide to work together, for example, notifying the other of potential infringements of legislation within its enforcement power and discussing matters of interest. It is essentially a statement that both regulators will have due regard to the other's regulatory ambit and be helpful to the other's aims.

Click here to read the Memorandum of Understanding.

Convention 108 Guidelines on Artificial Intelligence and Data Protection

The Committee for Convention 108 (the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data) published guidelines on the use of artificial intelligence (AI) and data protection. The guidelines contain measures for law makers, AI developers, manufacturers and service providers.

The measures aim to prioritise the protection of human rights, particularly individuals’ rights with respect to their personal data, when AI is being used. The report behind these guidelines recognises that personal data is often an intrinsic part of AI, being both an input and output. The guidance notes the importance of applying the updated Convention 108 principles (which share significant similarities with the GDPR principles), when AI is using personal data. The guidelines also recommend that a human rights by design approach (analogous to the GDPR privacy by design concept) is applied when using and creating AI to ensure that individuals' human rights are not compromised through the use of AI.

Click here to read Convention 108’s Guidelines on AI and Data Protection.

ICO fines sender and instigator of unlawful marketing communications

The ICO has fined both Leave EU Group Limited (Leave EU), an EU referendum campaign group, and Eldon Insurance Services Limited (Eldon) for the unlawful sending of marketing emails.

Background

Leave EU sent emails to its subscribers for the primary purpose of political campaigning and included in some of those emails an advertising banner for Eldon's services. The Commissioner stated that an email such as these ones is still classed as being sent for direct marketing purposes even where that it is not the primary purpose of the email; the marketing banner included in Leave EU's emails was created by Eldon; there was no contractual agreement between the two relating to the emails; and the arrangements surrounding the inclusion of the banner are unclear.

Invalid Consent under PECR

The Commissioner fined both companies – Eldon as the instigator and Leave EU as the sender of the communications – for breaching the Privacy and Electronic Communications Regulations 2003 (PECR) by failing to have obtained valid consent to send the marketing communications. Individuals were not made aware in the privacy policy made available to them that emails promoting Eldon's services may be sent to them, nor were they asked to specifically agree to receive marketing from Eldon. The Commissioner made it clear that it is not considered valid consent for an individual to agree to receive marketing in generic terms, such as from "similar organisations", "partners" and "selected third parties".

Reasonable Measures

The Commissioner noted some of the measures that Eldon should have taken to satisfy itself that the marketing of its services via Leave EU was lawful. These measures included performing adequate due diligence to confirm that Leave EU's privacy notice adequately informed individuals about the potential marketing activities and putting in place a contractual agreement with Eldon that provided assurances to Eldon of the lawful marketing of its products by Leave EU. 

The Commissioner considered reasonable steps that Leave EU should have taken to protect itself from carrying out unlawful marketing activities included naming Eldon and the relevant marketing activities in its privacy policy. 

Click here to read the monetary penalty notice addressed to Eldon and here to read the monetary penalty notice addressed to Leave EU.