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The stringent law introduces several novel obligations and a unique approach to determining applicability that may broaden its reach.

By Clayton Northouse, Michael H. Rubin, and Robert Brown

On June 18, 2023, Texas enacted the Texas Data Privacy & Security Act (TDPSA), which will largely take effect in just over a year on July 1, 2024. The TDPSA follows in the footsteps of 10 other comprehensive US state privacy laws but sits decisively on the more stringent end of the spectrum.

While the TDPSA is generally modeled after the Virginia Consumer Data Protection Act (VCDPA), it adopts many of the more consumer-friendly components of more recently enacted laws. It also introduces several novel obligations and a unique approach to determining applicability that may broaden its reach.

In light of these factors and considering the size of the Texas economy and population, the TDPSA may prove to be the most impactful state privacy law since the California Consumer Privacy Act (CCPA), which was enacted in 2020.

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The French Data Protection Authority imposed a €280,000 fine for GDPR infringements and a €100,000 fine for violation of French cookie rules.

By Myria Saarinen

On 11 May 2023 the French Data Protection Authority (the CNIL) handed down its decision on the health website Doctissimo, imposing a €280,000 fine for the infringement of four provisions of the GDPR and an additional €100,000 fine for the violation of Article 82 of the French Data Protection Act (the French Cookies Rule).

Founded in 2000 by medical doctors, Doctissimo is one of the most widely visited health and well-being websites in France, with the majority of visitors located in France and Belgium. The website hosts articles, tests, quizzes, and forums related to health and well-being.

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The new laws introduce novel applicability thresholds and other requirements that businesses should consider when preparing for compliance with US state privacy laws, including those coming into effect from 2023 onwards.

By Robert Blamires, Marissa Boynton, Michael H. Rubin, Joseph Hansen, and Austin Anderson

Key Takeaways:

(i) Indiana, Montana, and Tennessee have all enacted general data privacy legislation, bringing the total to nine US state data privacy laws.

(ii) Montana will be the first of the three new laws to take effect on October 1, 2024, followed by Tennessee on July 1, 2025, and Indiana on January 1, 2026.

(iii) For businesses subject to existing similar general data privacy laws in other US states, many of the requirements will look familiar. The laws in Indiana and Tennessee generally follow in the wake of Virginia’s privacy law, while Montana’s law tracks more closely to Connecticut’s privacy law.  

(iv) All three laws will be exclusively enforced by the respective state attorneys general, but the penalties and applicable cure periods vary.

general data protection regulation GDPR

By Ian Felstead, Gail Crawford, Serrin Turner, Tim Wybitul, and Hayley Pizzey[1]

The final decision of the Irish Data Protection Commission (IDPC) in relation to the transfers of EU/EEA Facebook user data by Meta Platforms Ireland Limited (Meta Ireland) to its processor, Meta Platforms, Inc., in the US (the Transfers)[2] was published on 22 May 2023 (IDPC Decision).[3]

The IDPC found that the Transfers, made pursuant to Standard Contractual Clauses (SCCs), did not comply with Article 46(1) GDPR, as the SCCs together with the supplementary measures implemented “do not compensate for the deficiencies in US law in issue”. The IDPC also found that the Transfers could not be made pursuant to any of the derogations under Article 49(1) GDPR. In particular, the IDPC concluded that the “contractual necessity” derogation could not be relied on by Meta Ireland “to justify the systematic, bulk, repetitive and ongoing transfers to the US”.

In light of these conclusions, the IDPC made an order suspending the Transfers (the Suspension Order).

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The court determined that mere infringement of the GDPR is insufficient for a damages claim, but that there is no minimum threshold for non-material damages.

By Tim Wybitul, Myria Saarinen, Isabelle Brams, Floriane Cruchet, Camille Dorval, Charlotte Guerin, Lara Nonninger, and Hayley Pizzey

In a recent judgment (Case C-300/21), the Court of Justice of the European Union (CJEU) held that mere infringement of the General Data Protection Regulation (GDPR) is insufficient to claim compensation under Article 82, absent any material or non-material damage suffered by the individual. In relation to non-material damage, the CJEU rejected the concept of a minimum threshold level of damage or harm to the individual.

Article 82 of the GDPR states that any person who has suffered material or non-material damage as a result of a GDPR infringement has the right to receive compensation.

The CJEU’s judgment has the potential to encourage non-material damages claims — whether individual or collective — as it is clear that there is no de minimis threshold for such damages. However, the judgment also holds that mere GDPR infringement is an insufficient basis for non-material damages and therefore the claimant must prove that they suffered damage — albeit not to a standard, European Union-wide minimal threshold. Therefore, the specific impact of this judgment will vary across Member States, depending on applicable domestic law underpinning non-material damages claims more broadly.

Organisations must provide individuals with information on the specific recipients of their data upon request.

By Tim Wybitul, Isabelle Brams, Calum Docherty, and Amy Smyth

The Court of Justice of the European Union (CJEU) has ruled that organisations must generally disclose the specific identity of data recipients on request from an individual in order to give effect to the right of access. Organisations may only limit their response to the mere categories of recipients if they cannot identify the specific recipients or if the request is manifestly unfounded or excessive. The court’s judgment in the case of RW v. Österreichische Post AG (Case C-154/21) follows the opinion given by CJEU Advocate General Giovanni Pitruzzella in mid-2022 (the Opinion). For background on the case and the Opinion, see this Latham & Watkins blog post.

The Dubai International Financial Centre urges companies to protect personal data when using artificial intelligence.

By Brian A. Meenagh, Ksenia Koroleva, and Lucy Tucker 

On 18 April 2023, the Dubai International Financial Centre (DIFC), a financial free zone with its own data protection laws, published a consultation paper (the Consultation Paper) regarding amendments to DIFC Data Protection Regulations (the Regulations) for a 30-day public consultation.

The Consultation Paper acknowledges that AI systems are important and useful but carry risks to personal data processing. The DIFC’s proposed approach urges all companies using AI systems to adopt and reinforce technical and organisational means to protect personal data when using AI.

The CJEU’s final ruling could subject companies to direct GDPR enforcement by DPAs notwithstanding national procedural rules, but may rule against strict liability under the GDPR.

By Tim Wybitul, Myria Saarinen, Isabelle Brams, Irina Vasile, and Amy Smyth

On 27 April 2023 Advocate General of the Court of Justice of the European Union (CJEU) Campos Sánchez-Bordona delivered an opinion in which he approved direct enforcement of the General Data Protection Regulation (GDPR) against companies but rejected…

Iowa’s new data privacy law, which will come into force in 2025, adds to an increasingly complex patchwork of state laws.

By Robert Blamires, Clay Northouse, Michael Rubin, Robert Brown, Joseph Hansen, and Zac Alpert

On March 28, 2023, Iowa became the sixth US state to pass a comprehensive privacy law. The Iowa data privacy law (SF 262) (Iowa Privacy Law) was passed unanimously by the state House and Senate, and signed by Governor Kim Reynolds.

The Iowa Privacy Law imposes requirements similar to those already required by other state privacy laws—most notably, Utah. The key task for companies subject to the law will be to ensure that their existing measures cover personal data collected about Iowa residents, for example, by extending their privacy notices, contracts, and user rights mechanisms to include Iowa consumer personal data.

The Office of the Privacy Commissioner for Personal Data of Hong Kong summarised enforcement trends and plans to further amend the Personal Data (Privacy) Ordinance.

By Kieran Donovan and Jacqueline Van

On 9 November 2022, the Office of the Privacy Commissioner for Personal Data of Hong Kong (Commissioner) published its annual report titled “A New Era in the Regulatory Regime for the Protection of Personal Data” (Annual Report). The Annual Report details the work of the Commissioner during 2021-2022, its observations on trends of complaints, and expectations for the year ahead. In particular, the Annual Report reflects the Commissioner’s continued efforts to enforce the new doxxing offence, and a likely further legislative review of the Personal Data (Privacy) Ordinance (Cap. 486) (PDPO) in the coming year.