Global Privacy & Security Compliance Law Blog

CJEU AG Sets High Bar for Responses to Data Subject Access Requests

Posted in GDPR, Legislative & Regulatory Developments

The Advocate General argues that organisations should provide individuals with information on the specific recipients of their personal data.

By Tim Wybitul, James Lloyd, Isabelle Brams, Irina Vasile, and Amy Smyth

Advocate General Giovanni Pitruzzella (AG) of the Court of Justice of the European Union (CJEU) recently delivered an opinion (the Opinion) regarding the interpretation of an individual’s right of access to their data under Article 15 GDPR (often known as a data subject access request, or DSAR/SAR). Specifically, the Opinion addresses an individual’s right to access information about “the recipients or categories of recipient to whom the personal data have been or will be disclosed […]”, pursuant to Article 15(1)(c) GDPR. The AG delivered the Opinion in the context of Case C-154/21 (the Case), which is currently pending before the CJEU. Continue Reading

EDPB Emphasizes “Dissuasive” Fines in New Draft Guidelines on GDPR Fine Calculation

Posted in GDPR, Privacy, Security

The EDPB sets out relevant steps and factors that EU supervisory authorities should consider when calculating administrative fines under the GDPR.

By Gail Crawford, Ian Felstead, James Lloyd, Tim Wybitul, Irina Vasile, Sami Qureshi, and Amy Smyth

On 16 May 2022, the European Data Protection Board (EDPB) adopted draft Guidelines 04/2022 on the calculation of administrative fines under the GDPR (Draft Guidelines).[1] The Draft Guidelines are currently subject to public consultation and comments may be submitted until 27 June 2022 (at the latest). The EDPB’s aim is to create a harmonised methodology for the calculation of GDPR fines. All EU supervisory authorities (SAs) must use the same starting points, on the basis of which administrative fines can be subsequently calculated and further tailored for individual cases. The EDPB clearly emphasizes that the Draft Guidelines are not drafted to enable controllers/processors to precisely calculate the expected fine; this determination will rather depend on all the individual circumstances of the case. SAs will need to ensure that fines are effective, proportionate, and dissuasive, taking into account the particularities of each case. While the EDPB acknowledges that SAs retain discretion to account for these particularities, they are clearly expected to follow the methodology set out in the Draft Guidelines. Continue Reading

Cyber Risk in Finance: A Q&A With Latham Partners

Posted in Privacy, Security

The evolution of cybersecurity-related representations and warranties in M&A transaction documentation has had an impact on financing transactions.

Major M&A transactions and IPOs have become the target of increasingly sophisticated cyberattacks, in some cases affecting thousands of companies along the supply chain. Regulators have responded with stepped-up enforcement, extending their reach not just to victim companies but also to third parties like payment processors and insurance carriers.

Today’s most pressing cybersecurity risks can have a significant effect on borrowers and their lenders, who should take several context-specific steps to limit risk, in addition to undertaking standard diligence including document review, management interviews, and analysis of publicly available information.

Latham & Watkins partners Robert Blamires, Tony Kim, and Jane Summers discuss in this Q&A how cybersecurity representations and warranties have evolved in M&A transactions, how cybersecurity risks can be addressed in the loan market, and how credit agreements can deal with cybersecurity.

New Cyber Incident Reporting Requirements on the Horizon in the US

Posted in Security

Companies should take steps now to prepare for the new rules and expectations.

By Jennifer C. Archie, Tony Kim, Serrin Turner, Alexander L. Stout, Ryan J. Malo, and James A. Smith

The US government continues to expand regulatory requirements around notification and disclosure of major cyberattacks or incidents. New measures are arriving on the heels of high-profile ransomware attacks on US companies and critical infrastructure, such as the Colonial Pipeline hack that caused gas shortages in the eastern United States last summer.

Announced shared cybersecurity priorities across the Executive Branch include:

  • Cyber hygiene in the public and private sector, especially where critical infrastructure is involved
  • Operational collaboration between the public and private sector for tier one events
  • Disruption of the flow of cryptocurrency or other consideration to attackers
  • Fulsome, accurate, timely disclosure to investors and other stakeholders
  • Comprehensive reporting of incidents

Continue Reading

Utah Consumer Privacy Act: Fourth US State Enacts Comprehensive Data Privacy Legislation

Posted in Privacy, Security

Utah enacts data privacy legislation in the mold of California, Colorado, and Virginia, but with less onerous requirements for businesses, in what is expected to be a model for more states going forward.

By Jennifer Archie, Michael Rubin, Joseph Hansen, and Wesley Tiu

On March 24, 2022, Utah Governor Spencer Cox signed the Utah Consumer Privacy Act (UCPA), making Utah the fourth US state to enact comprehensive data privacy legislation. The UCPA was introduced on February 17, 2022, and sped through the state legislature, receiving final passage on March 3, 2022.

The UCPA, which is set to take effect on December 31, 2023, builds off existing and forthcoming privacy legislation in California, Colorado, and Virginia, but lightens some of the compliance burdens on businesses. The UCPA does not impose any new privacy obligations on businesses that are not already required in California, and businesses will be familiar with the UCPA’s requirements — all of which have appeared in existing and forthcoming state data privacy laws. In a welcome change for businesses, however, the UCPA is narrower in certain respects as compared to its analogues in California (CCPA/CPRA), Colorado (CPA), and Virginia (VCDPA). (See, e.g., Virginia Consumer Data Protection Act: Second US State Passes Comprehensive Data Privacy Legislation.)

The UCPA represents the latest in a string of state privacy laws that seek to fill a nationwide gap while Congress continues to debate the merits of a federal data privacy law. The UCPA marks a slightly different variation, as it appears to have been more directly informed by industry groups such as TechNet and the State Privacy Security Coalition. These industry groups are working toward a uniform set of privacy laws in the United States, and Utah could set an example for additional states.

This blog post discusses some of the UCPA’s key provisions. Continue Reading

China Issues New Rules on Cybersecurity Review for Network Platform Operators Listing Abroad

Posted in Legislative & Regulatory Developments

Under the new rules Chinese NPOs holding more than 1 million individuals’ personal information must apply for a cybersecurity review prior to listing abroad.

By Hui Xu, Kieran Donovan, and Bianca Lee

On February 15, 2022, the Cybersecurity Review Measures (2021) (CRM 2021, unofficial English text available here) took effect. CRM 2021 was promulgated on December 28, 2021, by the Cyberspace Administration of China (CAC) and 12 other Chinese central authorities, including the Ministry of State Security, the Ministry of Industry and Information Technology (MIIT), and the China Securities Regulatory Commission (CSRC). The CAC published the first draft of CRM 2021 on July 10, 2021, for public comments, and published the final version on January 4, 2022. The CAC cites the Data Security Law (DSL) as the legal basis for the authority of CRM 2021.

The promulgation of CRM 2021 marks a step forward in China’s strict regulation of Chinese companies’ overseas listing and adds another hurdle to companies’ listing process. However, as the CSRC has repeatedly emphasized to the media, the Chinese government has no intention of banning Chinese companies from listing overseas, but rather wants to strengthen regulation from a national security and data security perspective.

See Latham’s Client Alert for a detailed discussion of CRM 2021, the new requirements that it introduces, and what Chinese companies will need to focus on when considering an overseas listing.

UAE Publishes First Federal Data Protection Law

Posted in Legislative & Regulatory Developments

Organisations subject to the law should carry out a gap analysis of their current compliance position against the new requirements.

By Brian A. Meenagh, Alexander Hendry, and Lucy Tucker

The United Arab Emirates (UAE) has issued its first federal data protection law (Federal Decree Law No. 45/2021 on the Protection of Personal Data) (the Data Protection Law), alongside a law establishing the new UAE Data Office (Federal Decree Law No. 44/2021 on Establishing the UAE Data Office).

The issuance of the Data Protection Law follows a trend of new data protection laws in the Middle East, including a data protection law in Saudi Arabia that will come into force on 23 March 2022. Continue Reading

CNIL Publishes White Paper on Digital Payments and Data Privacy

Posted in Legislative & Regulatory Developments, Privacy, Security

The French Data Protection Authority’s white paper discusses how companies can comply with data privacy and security obligations.

By Christian F. McDermott, Myria Saarinen, Calum Docherty, Charlotte Guerin, Jiou (Alex) Park, and Amy Smyth

The use of card, contactless, and innovative digital payment solutions has significantly increased in recent years, fueled by the immediate impacts of the ongoing COVID-19 pandemic and the longer-term growth of e-commerce and open banking. In this context, the legal and regulatory environment around payment data is no longer limited to traditional actors in the banking sector or the long-established ambit of banking secrecy rules. As such, stakeholders from fintech startups to established technology giants face an increasing patchwork of compliance obligations. Continue Reading

FTC Serves Notice of Enforcement Approach on Endorsements and Testimonials

Posted in Legislative & Regulatory Developments

Following recent setbacks, the FTC seeks a foothold for monetary remedies in the online advertising space.

By Jennifer C. Archie, Antony “Tony” Kim, Michael H. Rubin, and Marissa R. Boynton

On October 13, 2021, the Federal Trade Commission (FTC) sent a Notice of Penalty Offenses Concerning Endorsements and Testimonials to more than 700 businesses (the Notice). The Notice does not identify any alleged violations of law. Rather, it reminds recipients that fake online reviews and misleading endorsements are unlawful and highlights that the FTC intends to seek monetary relief if any of those 700 companies engages in conduct outlined in the Notice.

In citing past administrative cases, several of which date back to the 1940s and 1950s, the FTC warns brands and advertising agencies that using endorsements or testimonials in ways that run counter to these cases may expose them to civil penalties of up to US$43,792 per violation. The Notice follows on the heels of a similar warning regarding deceptive or unfair practices that was issued earlier in October to 70 for-profit higher education institutions.

Read the full Client Alert.

China Introduces First Comprehensive Legislation on Personal Information Protection

Posted in Privacy, Security

The Personal Information Protection Law, or PIPL, imposes stringent obligations of a similar standard to the GDPR and will take effect on November 1, 2021.

By Hui Xu, Kieran Donovan, and Bianca Lee

On August 20, 2021, the Standing Committee of the National People’s Congress adopted the Personal Information Protection Law of the People’s Republic of China (PIPL), the first legislation dedicated to protecting personal information in China. PIPL will take effect on November 1, 2021. PIPL previously underwent two revisions: the First Draft in October 2020 and the Second Draft in April 2021. Prior to PIPL, personal information in China was protected largely by the Network Security Law (which took effect in June 2017), the Civil Code (which took effect in January 2021), various provisions in other laws, and the Data Security Law, which was adopted in June 2021 and took effect on September 1, 2021. Collectively, these legislative sources will provide a comprehensive legal framework for protecting personal information in China.

Key Points:

  • Extraterritorial effect: PIPL applies to those who process personal information about Chinese individuals inside China as well as those who process personal information about Chinese individuals outside China.
  • Legal basis: PIPL expands the legal bases for processing personal information to seven, including where it is necessary for the performance of a contract with the individual.
  • Data transfer restrictions and localization requirements: Critical information infrastructure operators (CIIOs) and those who exceed the threshold of personal information processed set by the Cyberspace Administration of China (CAC) must store personal information in China unless they pass a CAC security assessment. PIPL also imposes more stringent requirements on cross-border data transfers, e.g., consent of the individual is always required.
  • Fines: Those who violate PIPL may face fines of up to 5% of annual revenue of the previous year or CNY50 million.

Read the full Client Alert.