GDPR

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The proposals would grant consumers increasing rights to require providers to share access to their data directly with chosen third parties.

By Alain Traill and Gail Crawford

The UK government has released a consultation advocating the introduction of sweeping new requirements for service providers to share both consumer data (upon request) and data regarding their own products and services, with third parties. The proposals, released on 11 June 2019 by the Department for Business, Energy and Industrial Strategy (BEIS) in its Smart Data report and consultation, are indicative of a wider drive toward requiring companies to free up access to the data they hold. The drivers behind this include a desire to increase competition, foster the growth of data-driven services, and improve consumer choice.

The proposals follow the introduction of a range of sector-specific initiatives in the UK and is part of a concerted government focus on digital strategy, as evidenced in its recent white paper on Regulation for the Fourth Industrial Revolution, as well as the National Data Strategy introduced last year.

The guidance clarifies the interplay between the PECR and GDPR and provides practical steps to achieving cookie compliance.

By Fiona M. Maclean, Laura Holden, and Grace E. Erskine

The UK’s data protection supervisory authority, the Information Commissioner’s Office (ICO), published guidance on 3 July 2019 to provide greater clarity to organisations grappling with how the General Data Protection Regulation (GDPR) applies to cookies and similar technologies. The new guidance makes it clear that under the GDPR, consents cannot be the default or blind setting, and consents cannot be bundled, as had been the common “wait and see” practice among many online businesses and sites. Organisations subject to the ICO jurisdiction will want to pay immediate attention to this guidance, including some helpful, pragmatic tips.

The European law on cookies can be found in the European Directive 2002/58/EC (ePrivacy Directive) (as amended by Directive 2009/136/EC), as implemented into UK law by the Privacy and Electronic Communications Regulation 2003 (as amended) (PECR). Regulation 6 PECR constitutes the foundation of the UK rules requiring organisations setting non-essential cookies on websites to provide “clear and comprehensive information” to users and to obtain their consent to the use of cookies. 

The ICO issued notices of intent to fine British Airways and Marriott. What happened?

By Gail Crawford, Fiona Maclean, Hayley Pizzey, and Calum Docherty

On 8 July 2019, the UK Information Commissioner’s Office (ICO) announced a notice of intent to fine British Airways £183.39 million (about US$230 million) for violating the General Data Protection Regulation (GDPR). The proposed fine is the largest to date under the GDPR, and equals 1.5% of British Airways’ 2017 global turnover, according to the Financial Times. It follows months of investigation after British Airways notified the ICO of a security incident that led to the theft of customer data in September 2018.

Then on 9 July 2019, the ICO announced a notice of intent to fine Marriott International £99.2 million (about US$124 million) for infringements of the GDPR stemming from a data breach at Starwood, which it acquired in 2016. According to the Wall Street Journal, this fine represents 2.5% of Marriott’s global revenue. Marriott initially announced the data breach in November 2018, which led to an ICO probe.

Online services have until 31 May to respond to 16 draft standards of age-appropriate design.

By Fiona Maclean and Olga M. Phillips

The ICO is required by s123 of the Data Protection Act 2018 to prepare a code of practice which contains guidance on standards of age-appropriate design of relevant information society services likely to be accessed by children. On 15 April, the ICO published a draft code of practice on age-appropriate design for online services (the Code). A copy of the Code can be found here.

Who does the Code apply to?

The Code is aimed at Information Society Services (ISS), which is defined as “any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services”. In practice, this definition extends to almost all online services including apps, websites, social media platforms, online messaging services, online marketplaces, content streaming services, and even news and educational websites.

The reference to “remuneration” is often seen as confusing. However, the ICO clarified that remuneration covers services funded by advertising, but also those provided to end users free of charge.

ISS should also note that the Code applies if children (i.e. a person under 18) are likely to use the service. This definition includes services that are designed specifically for children, as well as those that may appeal to children or those that were designed for adults but have, in fact, attracted children.

The closure of four cases involving targeted advertising provides lessons for navigating compliance standards under the GDPR.

By Myria Saarinen and Elise Auvray

Four French advertising technology companies that received a warning in 2018 from the French Data Protection Authority (CNIL) have all implemented the regulator’s required changes. The recent closure of the cases highlights opportunities for businesses at all layers of the adtech value chain to address emerging compliance challenges.

The companies — Fidzup, Teemo, Singlespot, and Vectaury — collect geolocation data for targeted advertising purposes via third-party apps. Initially, the French regulator found that they had failed to obtain an informed, freely given, and specific consent from app users, since:

  • The information provided was insufficient, as it was unclear, used complex terms, and was difficult to access.
  • The consent was not based on an affirmative declaration, as the options were pre-ticked.
  • Users were not asked to consent to the processing of their geolocation data specifically.

European regulators are expected to align their processes and guidance to accommodate the EDPB’s recommended approach to processing special categories of personal data.

By Gail E. Crawford, Frances Stocks Allen, and Mihail Krepchev

In January, the European Data Protection Board (EDPB) issued an opinion (Opinion) on the interplay between the General Data Protection Regulation (GDPR) and the Clinical Trials Regulation (CTR), which: (1) confirms that consent under the GDPR and CTR are different concepts; and (2) sets out the EDPB’s recommendations on the appropriate legal basis required for processing personal data in connection with clinical trials conducted in the EEA (which is unlikely to be consent).

Practical Takeaways

While the Opinion brings some much-needed certainty to the area of consent and other legal grounds for clinical trials, challenges remain. Outlined below are the key challenges and the steps that sponsors of clinical trials in the EEA (Sponsors) should take when designing their research activities:

Companies should identify data flows, implement a data transfer solution, and update internal documents and privacy notices.

By Fiona M. Maclean and Jane Bentham

Since our blog on “What a “No Deal” Brexit Means for UK Data Privacy”, the European Data Protection Board (EDPB) has published two information notes on data transfers in the event of a “no deal” Brexit:

  • A general note on the various data transfer mechanisms (and exceptions) under the GDPR
  • A specific note on the Information Commissioner’s Office (ICO), the UK regulator, as a Lead Supervisory Authority for Binding Corporate Rules

The UK government has also issued a paper titled “Implications for Business and Trade of a no Deal Exit on 29 March 2019,” including a small section on data transfers. The paper states that the government’s primary aim is to ensure that the UK leaves the EU on 29 March 2019 (the Exit Date) with an agreed and approved Withdrawal Agreement and Political Declaration (the Proposed Deal). Of course it is possible that Brexit may be delayed by extending Article 50 to give the UK more negotiating time with the EU.

The FTC and many state attorneys general aggressively monitor apps, websites, and internet-connected products for COPPA compliance.

By Jennifer C. Archie, Michael H. Rubin, and Alexander L. Stout

In the United States, collecting data directly from children under 13 years of age is tightly regulated by a federal statute, which is aggressively monitored and enforced. Under the Children’s Online Privacy Protection Act (COPPA), even seemingly straightforward online data collection and storage practices such as logging an IP address or storing an email address are subject to strict requirements, such as providing notice and obtaining advanced parental consent prior to collection or storage.

Under COPPA, obtaining proper consent can be technically or administratively burdensome, expectations shift with technological advancement, regulatory exceptions are vague, and penalties are calculated on a per-violation basis. COPPA is enforced by the Federal Trade Commission (FTC) and state attorneys general, both of which are very active in this area. Although the FTC maintains a website with answers to frequently asked questions, the law is complicated, and companies should consult with an attorney.

The DIFC guidelines provide practical guidance for DIFC-registered entities engaging in electronic direct marketing, including useful “dos” and “don’ts”.

By Brian A. Meenagh, Fiona M. Maclean, and Laura Holden

What Do DIFC-Registered Entities Need to Know?

In January 2019, the Commissioner for Data Protection for the Dubai International Financial Centre (DIFC) issued new Direct Marketing and Electronic Communications Guidelines, aimed at DIFC-registered entities that collect and maintain personal data for electronic direct marketing purposes.

The document provides practical guidance on the rules relating to the collection, maintenance, and use of personal data for electronic direct marketing purposes set out in the Data Protection Law, DIFC Law No.1 of 2007 (DP Law), which is based on the (now superseded) UK Data Protection Act 1998 and EU Data Privacy Directive 1996. However, the guidelines also take into account the latest direct marketing requirements under the General Data Protection Regulation (GDPR) and the Privacy and Electronic Communications Directive 2002, providing practical examples of “do’s” and “don’ts” for entities to consider. The guidelines also appear to leverage provisions from the October 2018 draft of the EC’s new e-Privacy Regulation (ePR) which is currently anticipated to come into force in 2021.

The European Commission adopted its adequacy decision for Japan on 23 January 2019, opening the doors for personal data to flow freely between the two major global economies.

By Fiona M. Maclean and Laura Holden

The Adequacy Decision

Following two years of dialogue between the European Union (EU) and Japan, the European Commission (EC) adopted its mutual adequacy decision (Decision) for Japan on 23 January 2019. As noted in the EC’s press release, the decision is effective immediately.

Japan now joins a list of select jurisdictions recognised as adequate by the EC, notably: Andorra, Argentina, Canada (for private entities only), Faeroe Islands, Guernsey, Israel, Isle of Man, Jersey, New Zealand, Switzerland, Uruguay, and the United States (EU-U.S. Privacy Shield). The Decision is the first of its kind adopted since the General Data Protection Regulation (GDPR) became applicable in May 2018.