GDPR

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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.

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.

Companies have three months to prepare to use the latest standard contractual clauses for new data transfers, and 18 months to migrate existing arrangements.

By Gail Crawford, Fiona Maclean, Danielle van der Merwe, and Amy Smyth

On 4 June 2021, the European Commission released its much-anticipated final Implementing Decision containing the new standard contractual clauses (SCCs) for the transfer of personal data to third countries, which will enter into effect on 27 June 2021. Organisations may continue to use the existing SCCs until 27 September 2021, after which time the new SCCs must be used for relevant new data transfers. Organisations have an 18-month grace period (until 27 December 2022) during which they must migrate any existing SCC arrangements to the new SCCs.

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.

As the Brexit transition period draws to a close, businesses will need to consider their data protection efforts to comply with both UK and EU regimes.

By Gail Crawford, Fiona Maclean, and Amy Smyth

The end of the Brexit transition period on 31 December 2020 will have several data protection consequences. The impact of one of the more significant implications — the UK becoming a third country for the purposes of EU-to-UK personal data transfers — has been mitigated by a four to six-month grace period in the EU & UK Trade and Cooperation Agreement (the Trade Agreement).

The Trade Agreement’s grace period states that personal data may be transferred from the EU to the UK as if the UK has not become a third country on 1 January 2021 (Article FINPROV.10A). This provision means that the requirement for a data transfer mechanism to legalise such transfers under the European General Data Protection Regulation (GDPR) will not be triggered on 1 January 2021, and these transfers may continue as during the Brexit transition period.

The French data protection authority’s decisions cite violations of the cookie rules under the ePrivacy Directive and provide important insights on explicit consent.

By Gail Crawford, Myria Saarinen, Tim Wybitul, and Wolf-Tassilo Böhm

Between December 2019 and May 2020, the French data protection authority (CNIL) conducted multiple online investigations by visiting google.fr and amazon.fr, before launching a full-scale investigation into Google LLC, Google Ireland, and Amazon Europe Core. On 7 December 2020, the CNIL handed down two decisions, one against Google LLC (€60 million fine) and Google Ireland (€40 million fine), and another against Amazon Europe Core (€35 million fine). Contrary to a previous sanction against Google LLC, which was triggered by specific complaints about its practices, the CNIL’s decisions indicate that the investigations were launched sua sponte with the specific aim of controlling the companies’ cookie practices.

As contactless transactions boom, EU regulators publish draft guidelines on the interplay between the GDPR and PSD2.

By Fiona M. Maclean, Christian F. McDermott, Calum Docherty, and Amy Smyth

Last year, more than half of all payments in the UK were made by card and contactless methods, while cash made up less than a quarter of all payments for the first time, according to the trade association UK Finance. The COVID-19 pandemic has accelerated the shift towards a cashless society, as governments across Europe encourage citizens and businesses to adopt cashless solutions. At the start of the lockdown, in the spring, ATM transaction volumes in the UK fell 62% year on year, while the daily cash transaction volumes dropped by as much as 90% in Spain, according to the Financial Times.

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.

The Council decision contains useful considerations and clarifications on the “one-stop shop” mechanism, transparency obligations, and consent for targeted advertising.

By Myria Saarinen and Camille Dorval

On 19 June 2020, France’s Highest Administrative Court (Council) handed down its decision on the appeal filed by Google LLC (Google) against the French Data Protection Authority’s (CNIL’s) decision of 21 January 2019, which imposed a fine of €50M to Google for failure to comply with the obligations of transparency and to lawfully process personal data on the basis of a valid consent, with respect to the operating system for Android mobile terminals.