January 31, 2019

Global Data & Privacy Update for January

Welcome to the January 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.

CNIL fines Google €50 million for GDPR breaches

The French Data Protection Regulator, CNIL, has fined Google LLC 50 million euros for breaching the General Data Protection Regulation (GDPR). CNIL considered that it had the authority to carry out the enforcement action because Google's European headquarters in Ireland was not deemed to be a "main establishment", within the definition of the GDPR, and so the company did not have a lead authority, to funnel enforcement actions. The Regulator imposed the fine due to two breaches of the GDPR.

  1. Google was found to have breached Articles 12 and 13 of the GDPR by failing to provide individuals with the information required of an information notice (or privacy notice) and by failing to provide information in a transparent manner. In particular, CNIL found that Google failed to provide data subjects with all of the information required with respect to data retention details and failed to provide information with a sufficient level of specificity, particularly in relation to processing purposes and lawful bases. In addition, users were required to take six steps to reach certain information.
  2. Google was found to have breached Articles 6 and 7 of the GDPR by failing to obtain valid consent to implement ad personalisation. The Regulator considered that consent had not been validly obtained because it was not specific, informed and unambiguous. Information on ad personalisation was spread over a number of places and insufficient detail was provided in the specific section on "ad personalisation", including about the breadth of operations involved (e.g Youtube, Google Maps, Playstore). CNIL also disapproved of using a pre-ticked box to obtain consent for ad personalisation, going against the requirement for affirmative consent under the GDPR. Finally, Google did not obtain specific consent because, on creating an account, an individual was presented with one statement to agree to multiple processing operations (including ad personalisation) rather than separate statements for each processing operation.

Click here to read CNIL's press release on the monetary penalty notice and here for the full monetary penalty notice (available in French only). 

ICO Strategy on Access to Information held by Public Authorities

The Information Commissioner's Office (ICO) has released a draft strategy paper setting out goals to be achieved over the next three years in relation to providing individuals with access to information under the Freedom of Information Act (2000), Environmental Information Regulations (2004) and Reuse of Public Sector Information Regulations 2015. The objectives relate to awareness, improvement of standards, global collaboration, enforcement and reform to keep legislation up to date.

In order to achieve these goals, the draft paper sets out a number of actions for the ICO to take to assist public authorities with fulfilling their obligations to provide access to information. For example, the Regulator has suggested the trialling of a self-assessment toolkit for public authorities to improve information handling practice, "transparency" impact assessments based upon data protection impact assessments required under the GDPR and a new service charter outlining expectations for both public authorities and the general public.

This paper is in draft form and open for comment, through an online survey, until 8 March 2019.

Click here to read the ICO's "Openness by Design" Access to Information Strategy paper.

Draft Data Protection legislation amending law for Brexit

The UK government has released draft legislation (The Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019) to make current data protection law, primarily the GDPR and Data Protection Act 2018, fit for purpose post Brexit. Many of the changes are substitutions in order for the legislation to function following Brexit, for example substituting "Union or Member State law" with "domestic law" and "supervisory authority" with "the Commissioner" (the ICO).

There are a few important points to note. The proposed amendments to the GDPR fix the limit on potential fines in pounds, with 10 million euros equated to 8.7 million pounds and 20 million euros to 17.5 million pounds (a conversion rate roughly of 1.14). Article 8 of the GDPR sets out requirements relating to the consent of children for information society services; the draft law adds in an exemption to the scope of information society services for "preventive or counselling services". In relation to the lawful transfer of personal data to third countries, the Secretary of State will take the place of the Commission in making and managing adequacy decisions and for setting standard contractual clauses (as well as the ICO). The draft law also includes transitional provisions on exit for transfers of data to third countries.

The key point of uncertainty, which the draft Regulations cannot resolve, is how personal data will be able to flow into the UK from the EEA post Brexit in accordance with EEA data protection laws. The Government and the ICO have released advice on this key point.

Click here to read the (draft) Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019. Click here for the advice from the Government on Brexit and Data Protection, and here for the advice from the ICO.

Advocate General Opinion on Controller designation for Third Party Embedded Website Content

Advocate General Bobek has provided an opinion on who the controller is where personal data is sent to Facebook due to the embedding of a Facebook "Like" button on an independent website. A company placed a Facebook "Like" button on its website causing personal data to transfer to Facebook, regardless of the button being clicked or the website visitor having a Facebook account. The Advocate General proposed that both the company and Facebook were (joint) controllers, under the Data Protection Directive 95/46, for the collection and transmission of the data.

Bobek made this determination following recent previous decisions, including another judgment involving Facebook (Wirtschaftsakademie Schleswig-Holstein). The company was deemed a controller due to its decision to embed the "Like" button which made Facebook's collection of personal data possible. The company was therefore considered to have effectively determined the parameters of web visitor's data being collected, regardless of the company being unable to control any subsequent data processing by Facebook. The Advocate General noted that, such as in the previous Facebook case where that company gained statistical data to inform audience participation, the company gained a benefit from the use of the plug-in (albeit not as obvious or definite) of free advertisement of a product on a visitor's Facebook account.

In order to process personal data on the website, the company had relied upon legitimate interests as a lawful basis. The consequence of the above designation was deemed to be that on assessing legitimate interests, both the company and Facebook's interests needed to be considered and balanced against data subject rights. It was noted that, due to the requirements of the E-Privacy Directive 2002/58/EC (implemented in the UK under the Privacy and Electronic Communications Regulations), consent would still be required because of the deployment of cookies. Bobek considered that the website operator should be responsible for both collecting consent and providing information notices, relating to the period of joint controller responsibility. It was noted that, while either joint controller could fulfil these obligations, the situation lent itself to this conclusion.

Please note that Advocate General opinions are not binding on the Judges of the European Court of Justice and the judgment from the Court of Justice has not yet been released.

Click here to read the full opinion.

Advocate General Opinion on Scope of Right to be Forgotten

Advocate General Szpunar has proposed, in a case between CNIL and Google, that the right to be forgotten is limited to information accessible from Europe. This case concerned the limitations on a right to be forgotten request received by Google (right to be de-listed) and whether the right should extend to the search engine's domain names globally (e.g google.nz). The request was made under the old data protection legislation, founded on the Data Protection Directive 95/46/EC, and so the opinion concerns the interpretation of that law.

The Advocate General stated that the law does not prescribe the territorial limits of a right to be forgotten. In his opinion, the right should not have a wide extraterritorial application and the right to be forgotten from google search results should not affect searches outside of the EU. It was considered that the right to de-listed, in the circumstances of this case, was not analogous to the extraterritorial effects applied in areas such as trademark law due to the global presence of the internet. Szpunar noted the potential effects of any other conclusion, including that countries outside of the EU may restrict access to EU located persons based on their interpretation of public interest. It was noted that the opinion was fact specific and that there could be other circumstances justifying a right to be de-listed globally from a search engine. 

Whilst the opinion proposes limits on the application of the right to be forgotten, the Advocate General stated that measures must be taken to ensure that the right is properly complied with, for example by imposing "geo-blocking" on search results to prevent non-EU domain names being used to bypass restrictions on EU domain names.

Please note that Advocate General opinions are not binding on the Judges of the European Court of Justice and the judgment from the Court of Justice has not yet been released.

Click here to read the press release of the Advocate General's Opinion. (Please note the full text Opinion is available currently only in French).

Cybersecurity Rules in force for South Carolina Insurance Companies

Insurance companies in South Carolina now need to comply with additional rules on cybersecurity. The rules, which came into effect at the start of the year, apply to insurance companies licensed in South Carolina. The law requires companies to report certain data breaches within 72 hours to national state insurance agencies. The legislation is based upon the Insurance Data Security Model Law, drafted by the US National Association of Insurance Commissioners. There is a phased implementation of certain aspects of the law relating to due diligence on third parties and maintaining an information security plan.

This new law is part of a continuing trend to increase legislation in the sphere of data protection and privacy, marked not only by last year's headline European law but also a number of US State laws, for example California's Internet of Things law and the New York State Cybersecurity Requirements for financial service companies. Other US States are also looking at implementing legislation based on the Insurance Data Security Model Law.  

Click here to read the South Carolina Insurance Data Security Act.