data protection

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UK government sets out ambitious proposal for reforming the UK data protection landscape.

By Gail E. Crawford, Ian Felstead, Fiona M. Maclean, Irina Vasile, Timothy Neo, and Amy Smyth

On 17 June 2022, the Department for Culture, Media and Sport (DCMS) published its response to its consultation “Data: a new direction” (the Consultation), setting out the government’s plans to reform the UK data protection regime.

These reforms are part of the UK’s National Data Strategy, which seeks to shift focus from prescriptive requirements to a risk-based approach, thereby making data protection less burdensome for businesses and enabling them to protect personal data in a proportionate and appropriate way. The DCMS has indicated, in comments at a recent conference, that the intention and direction of travel is to build on, improve, and clarify the approach that the UK will take with the UK GDPR in a way that benefits businesses whilst maintaining the same level of data protection for individuals.

This blog post scrutinises some of the Consultation’s key takeaways. For a full list of proposals that are being taken forward pursuant to the Consultation, see this response Annex.

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.

The CJEU’s decision is likely to have significant implications for ongoing and future proceedings for damages claims under Art. 82 GDPR.

By Tim Wybitul, Christoph Baus, Stefan Patzer, and Isabelle Brams

On April 15, 2021, the Austrian Supreme Court (OGH) referred key questions regarding non-material damages for data protection infringements under Art. 82 GDPR to the European Court of Justice (CJEU) for a preliminary ruling under Art. 267 TFEU. So far, a number of claims for non-material damages based on violations of the GDPR have been dismissed by the courts in Austria and Germany because the plaintiffs did not allege or prove any noticeable immaterial impairment. The OGH makes reference to a decision of the German Federal Constitutional Court (BVerfG) dated January 14, 2021 in which the court overturned a decision by the Goslar Local Court (AG). The BVerfG ruled that the AG would have had submit significant questions about damages to the CJEU before making a decision in the final instance. Whilst the OGH disagreed with the finding of the BVerfG, it considered it helpful to refer question to the CJEU in order to ensure a harmonized application of the law within the EU.

The decision means the CJEU will need to clarify the framework for GDPR damages claims.

By Tim Wybitul, Dr. Christoph Baus, and Dr. Isabelle Brams

The German Federal Constitutional Court has ruled that the Court of Justice of the European Union (CJEU) needs to clarify if the General Data Protection Regulation (GDPR) provides for a materiality threshold for GDPR damage claims. The decision overturns a judgment of the Goslar Local Court of 27 September 2019 regarding the unlawful sending of an advertising email.

Latham lawyers explain who the DIFC’s new law applies to and how it maps against the GDPR.

By Brian A. Meenagh, Fiona M. Maclean, Alexander Hendry, and Avinash Balendran

The Dubai International Financial Centre (DIFC) recently issued a new data protection law and regulations: the Data Protection Law DIFC Law No. 5 of 2020 and the Data Protection Regulations (together, the DIFC DP Legislation).  The new law, which became effective on 1 July 2020, sets a significant benchmark for data privacy in the Middle East and aligns the DIFC’s data protection framework with international data protection regulations, including the EU’s General Data Protection Regulation (GDPR).

Court’s decision struck down blanket prohibition on so-called “cookie walls” that prevent users from accessing a website or an application.

By Myria Saarinen and Charlotte Guérin

France’s Highest Administrative Court (the Conseil d’Etat) issued a decision on 19 June 2020 upholding most of the guidance on cookies and other tracking devices that the French Data Protection Authority (the CNIL) had published on 4 July 2019 (the Guidance). However, the Conseil d’Etat struck down the provision of the Guidance imposing a blanket prohibition on so-called “cookie walls” that prevent users who do not consent to the use of cookies from accessing a website or an application. On the same day, the CNIL published a communication acknowledging the decision and announcing that it would adjust its Guidance and future recommendation to strictly comply with the Conseil d’Etat’s decision.

UK data protection regulator demands companies in the RTB ecosystem re-evaluate privacy notices, use of personal data, and lawful basis.

By Robert Blamires, Calum Docherty, Laura Holden, and Lucy Tucker

The UK Information Commissioner’s Office’s (ICO’s) latest report into adtech and real time bidding (RTB) (the ICO Report) provides a stark assessment of the adtech sector’s use of personal data in RTB scenarios. The ICO Report notes widespread compliance concerns that, in some cases, the ICO does not consider “will be addressed without intervention.” Organizations in this field should expect potentially more vigorous investigations and enforcement action if the ICO’s concerns are not addressed.

RTB is an online ad-buying process by which advertising space on websites is bought and sold via an instantaneous “programmatic” auction. During the auction process, a wide range of data (mostly originated from cookies) can be shared with multiple advertisers who place real time bids for relevant ad space. 

Recent action by the Hamburg authority may present implications for companies regulated by a lead data protection supervisory authority in Europe.

By Fiona Maclean, Tim Wybitul, Joachim Grittmann, Wolf Böhm, Isabelle Brams, and Amy Smyth

A German supervisory authority has initiated an investigation into Google’s speech recognition practices and language assistant technologies, which are integrated into its Google Assistant product. More specifically, the Hamburg supervisory authority opened proceedings with the intention to “prohibit Google from carrying out corresponding evaluations by employees or third parties for a period of three months. This is intended to protect the personal rights of those concerned for the time being.”

This blog post analyzes the procedure against Google in Germany, in the context of recent trends elsewhere in Europe to transfer cases to lead authorities, and the impact for other companies regulated by a lead supervisory authority. The proceedings against Google might be resolved amicably, but still raise substantial questions over the powers of supervisory authorities under the cooperation and consistency mechanism of the GDPR.

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.