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The guidance provides general requirements for obtaining valid consent and details conditions under which audience management cookies may be exempt.

By Myria Saarinen and Camille Dorval

On 4 July 2019, one day after the UK Information Commissioner’s Office (ICO) published new guidance on cookies, the French Data Protection Authority (CNIL) released its own new guidance (Guidance). A corrective version followed on 19 July 2019.

The Guidance clarifies “consent” under Article 82 of the French Data Protection Act (Article 82). Article 82 implements the ePrivacy Directive’s cookies rule and constitutes the foundation of the French rules requiring organizations placing non-essential cookies to provide “clear and complete” information to users and to obtain their consent to the use of cookies.

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. 

Healthcare entities should immediately assess whether Federal Law No. 2 of 2019 applies to their practices.

By Brian A. Meenagh

On 6 February 2019, the President of the United Arab Emirates (UAE) in conjunction with the UAE Minister of Health and Prevention (the Minister) issued a new law on the use of information and communications technology (ICT) in health fields in the UAE. Federal Law No. 2 of 2019 (the Law) entered into effect in May 2019 and will likely affect the activities of a number of entities operating in the healthcare sector in the UAE, including healthcare service providers, life sciences companies, cloud service providers, healthcare IT systems suppliers, and medical insurance providers.

Broadly written rules would allow the Russian government greater central control over content and data flows, and greater access to users’ information.

By Fiona M. Maclean and Ksenia Koroleva

On May 1, 2019, the Russian President signed draft law No. 608767-7, commonly referred to as the Russian Internet Law, or “RuNet Law” (Federal Law No. 90-FZ “On Amending Federal Law ‘On Communications’ and Federal Law ‘On Information, Information Technology and Information Protection’”). The majority of RuNet Law amendments will come into effect on November 1, 2019.

The RuNet Law’s principal provisions include:

  • Introducing rules for the centralization and control of data traffic (g., the RuNet Law establishes a centralised Russian Internet data traffic routing system)
  • Requiring entities involved in the transfer of data to install additional equipment and comply with new obligations that aim to ensure such centralization

UK publishes White Paper with hard-hitting regulatory proposals to tackle online harms.

By Alain Traill, Stuart Davis, Andrew Moyle, Deborah Kirk and Gail Crawford

On 8 April 2019, the Home Office and the Department for Culture, Media and Sport (DCMS) published an “Online Harms White Paper”, proposing a new compliance and enforcement regime intended to combat online harms. The regime is designed to force online platforms to move away from self-regulation and sets out a legal framework to tackle users’ illegal and socially harmful activity. Although the regime appears to target larger social media platforms, the proposals technically extend to all organisations that provide online platforms allowing user interaction or user-generated content (not limited to social media companies or even ‘service providers’ in the traditional sense) and set out a potentially onerous and punitive compliance and enforcement regime for a broad set of online providers.

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 Guidance provides helpful clarifications for service providers and their customers on both sides of the Atlantic.

By Robert Blamires, Fiona M. Maclean, and Danielle van der Merwe

Long-awaited guidance on the territorial scope of the General Data Protection Regulation (GDPR) has been published by the European Data Protection Board (EDPB) for public consultation (Guidance). Under Article 3, the GDPR applies to the processing of personal data which meets the “establishment” test (Article 3(1)), or, failing that, meets the “targeting” test (Article 3(2))[i].

“Establishment” Test

The GDPR applies to the processing of personal data by a controller or processor established in the EU in the context of activities of that establishment, regardless of whether the processing itself takes place in the EU. “Establishment” is not defined in the GDPR, but the Guidance refers to pre-GDPR case law to assist with its interpretation.

Germany’s first GDPR fine offers lesson for companies planning a data breach policy.

By Tim Wybitul, Wolf-Tassilo Böhm, and Isabelle Brams

In November 2018, Germany’s first fine under the General Data Protection Regulation (GDPR) was imposed — and it was much lower than many expected. The favourable outcome of the proceedings for the defending company demonstrates that, with a proper defence strategy, GDPR infringements may not necessarily end in a worst-case scenario for companies.

In July 2018, Knuddels GmbH & Co. KG (Knuddels), operator of the chat community Knuddels.de, noted the loss of 1.8 million user data records (including a file with unencrypted user passwords) as the result of a cyberattack. After reporting this incident to the appropriate supervisory authority, Knuddels was investigated for infringement of the GDPR. Because the authority deemed that the company’s IT security was not state-of-the-art, there was a high risk that the supervisory authority would impose a large fine on Knuddels.

GDPR and PSD2 are two legal initialisms that have both generated a great deal of press coverage in recent months, but they are seldom considered together.

By Christian F. McDermott, Calum Docherty and Brett Carr

There were around 122 billion non-cash payments in the European Union (EU) in 2016, with card payments accounting for 49% of all transactionsi  and the trend is continuing: UK Finance recently reported that UK debit card payments overtook the number of cash transactions for the first time in the final quarter of 2017. As Europeans increasingly swap cash for cards and live their lives online, businesses have tremendous opportunities to take advantage of the vast amount of personal data generated by the increased use of payment services.

In the EU, activities in the payments sector are subject to the revised Payment Services Directive (2015/2366, known as PSD2). PSD2 was transposed in the UK primarily by the Payment Services Regulations 2017, the majority of which came into force on 13 January 2018.

Brazilian Congress passes a data protection bill that seeks to improve privacy and cybersecurity.

By Amadeu Ribeiro and Thiago Luís Sombra (Mattos Filho, Veiga Filho Marrey Jr e Quiroga Advogados) and Jennifer Archie and Terese Saplys

The Brazilian Congress has been working on a bill relating to the protection of personal data for over eight years. The Senate approved the bill, known as the General Data Protection Act (GDPA), on 10 July 2018, and the bill was sent to the President for execution.  A window of 15 business days (i.e., up to and including 13 August 2018) within which the President may veto the bill now follows. If the President does not actively reject the bill, it automatically becomes law. Thereafter, businesses will have an 18-month grace period (i.e., up to and including 13 February 2020) to adjust to the change in law before it becomes effective on 14 February 2020.

What Is the GDPA?

The GDPA was motivated in part by Brazil’s desire to be admitted to the OECD and to prevent disruption in its commerce with the European Union and other important trading partners. As such, the GDPA seeks to match the level of protection afforded to data subjects by the laws of these trading partners.