Category: EU

The New EU Data Governance Act

On 17th May 2022, The Council of the European Union adopted the Data Governance Act (DGA) or Regulation on European data governance and amending Regulation (EU) 2018/1724 (Data Governance Act) (2020/0340 (COD) to give its full title. The Act aims to boost data sharing in the EU allowing companies to have access to more data to develop new products and services. 

The DGA will achieve its aims through measures designed to increase trust in relation to data sharing, creating new rules on the neutrality of data marketplaces and facilitating the reuse of public sector data. The European Commission says in its Questions and Answers document: 

“The economic and societal potential of data use is enormous: it can enable new products and services based on novel technologies, make production more efficient, and provide tools for combatting societal challenges“.

Application

The DGA will increase the amount of data available for re-use within the EU by allowing public sector data to be used for purposes different than the ones for which it was originally collected. The Act will also create sector-specific data spaces to enable the sharing of data within a specific sector e.g. transport, health, energy or agriculture.

Data is defined as “any digital representation of acts, facts or information and any compilation of such acts, facts or information, including in the form of sound, visual or audiovisual recording” that is held by public sector bodies and which is not subject to the Open Data Directive but is subject to the rights of others. Examples include data generated by GPS and healthcare data, which if put to productive use, could contribute to improving the quality of services. The Commission estimates that the Act could increase the economic value of data by up to €11 billion by 2028.

Each EU Member State will be required to establish a supervisory authority to act as a single information point providing assistance to governments. They will also be required to establish a register of available public sector data. The European Data Innovation Board (see later) will have oversight responsibilities and maintain a central register of available DGA Data. 

On first reading the DGA seems similar to The Re-use of Public Sector Information Regulations 2015 which implemented Directive 2013/37/EU. The aim of the latter was to remove obstacles that stood in the way of re-using public sector information. However the DGA goes much further. 

Data Intermediary Services 

The European Commission believes that, in order to encourage individuals to allow their data to be shared, they should trust the process by which such data is handled. To this end, the DGA creates data sharing service providers known as “data intermediaries”, which will handle the sharing of data by individuals, public bodies and private companies. The idea is to provide an alternative to the existing major tech platforms.

To uphold trust in data intermediaries, the DGA puts in place several protective measures. Firstly, intermediaries will have to notify public authorities of their intention to provide data-sharing services. Secondly, they will have to commit to the protection of sensitive and confidential data. Finally, the DGA imposes strict requirements to ensure the intermediaries’ neutrality. These providers will have to distinguish their data sharing services from other commercial operations and are prohibited from using the shared data for any other purposes. 

Data Altruism

The DGA encourages data altruism. This where data subjects (or holders of non-personal data) consent to their data being used for the benefit of society e.g. scientific research purposes or improving public services. Organisations who participate in these activities will be entered into a register held by the relevant Member State’s supervisory authority. In order to share data for these purposes, a data altruism consent form will be used to obtain data subjects’ consent.

The DGA will also create a European Data Innovation Board. Its missions would be to oversee the data sharing service providers (the data intermediaries) and provide advice on best practices for data sharing.

The UK

Brexit means that the DGA will not apply in the UK, although it clearly may affect UK businesses doing business in the EU. It remains to be seen whether the UK will take similar approach although it notable that UK proposals for amending GDPR include “amending the law to facilitate innovative re-use of data for different purposes and by different data controllers.”

The DGA will shortly be published in the Official Journal of the European Union and enter into force 20 days after publication. The new rules will apply 15 months thereafter. To further encourage data sharing, on 23 February 2022 the European Commission proposed a Data Act that is currently being worked on.

This and other GDPR developments will be discussed in detail on our forthcoming GDPR Update workshop. We also have a few places left on our Advanced Certificate in GDPR Practice course starting in September.

Act Now Announces New EU GDPR Practitioner Certificate 

Act Now is pleased to announce the launch of its new EU GDPR Practitioner Certificate course.

This new course is specially designed for Data Protection Officers and privacy practitioners, based in the EU and internationally, whose role involves advising on the EU GDPR and associated privacy legislation. The content of the course has been developed after analysing all the knowledge, practical skills and competencies required for the EU DPO to successfully navigate the European data protection landscape. 

This course builds on Act Now’s very popular UK GDPR Practitioner certificate course which has been attended by hundreds of DPOs throughout the UK and abroad since its launch in 2017.  Our teaching style is based on practical and engaging workshops covering theory alongside hands-on application using case studies that equip delegates with knowledge and skills that can be used immediately. Personal tutor support throughout the course will ensure the best opportunity for success. Delegates will also receive a comprehensive set of course materials, including our very popular EU GDPR Handbook (RRP £34.99), as well as access to our online Resource Lab, which includes over 20 hours of videos on key aspects of the syllabus.

The EU GDPR Practitioner Certificate course takes place over four days (one day per week) and involves workshops, case studies and exercises. This is followed by a written assessment. Delegates are then required to complete a practical project (in their own time) to achieve the certificate. Whether delivered online or in the classroom, delegates will receive all the fantastic features of the course specifically tailored for each learning environment. 

The EU GDPR Practitioner Certificate course builds on Act Now’s track record for delivering innovative and high quality practical training for information governance professionals:

The course director for the EU GDPR Practitioner Certificate, Ibrahim Hasan, says:

“We have looked at every aspect of this course to ensure it equips EU Data Protection Officers with the knowledge and skills they need to implement the EU GDPR in a practical way. Because of its emphasis on practical skills, and the success of our UK GDPR Practitioner certificate course, we are confident that this course will become the qualification of choice for current and future EU Data Protection Officers.”

New US-EU Data Transfer Announcement: Time to celebrate?

On 25th March 2022, the European Commission and the United States announced that they have agreed in principle on a new Trans-Atlantic Data Privacy Framework. The final agreement will replace the Privacy Shield Framework as a mechanism for lawfully transferring personal data from the EEA to the US in compliance with Article 44 of the GDPR. As for UK/US data transfers and compliance with the UK GDPR is concerned, it is expected that the UK Government will strike a similar deal once the EU/US one is finalised.

The need for a “Privacy Shield 2.0” arose two years ago, following the judgment of the European Court of Justice (ECJ) in “Schrems II” which stated that organisations that transfer personal data to the US can no longer rely on the Privacy Shield Framework as a legal transfer tool. They must consider using the Article 49 derogations or standard contractual clauses (SCCs). If using the latter, whether for transfers to the USA or other countries, the ECJ placed the onus on the data exporters to make a complex assessment  about the recipient country’s data protection legislation (a Transfer Impact Assessment or TIA), and to put in place “additional measures” to those included in the SCCs. The problem with the US is that it has stringent surveillance laws which give law enforcement agencies access to personal data without adequate safeguards (according to the ECJ in Schrems).

Despite the Schrems II judgment, many organisations have continued to transfer personal data to the US hoping that regulators will wait for a new deal before enforcing Article 44.  Whilst the UK Information Commissioner’s Office (ICO) seems to still have a “wait and see” approach, others have started to enforce. In February 2022, the French Data Protection Regulator, CNIL, ruled that use of Google Analytics was a breach of GDPR due to the data being transferred to the US without appropriate safeguards. This followed a similar decision by Austrian Data Protection Authority in January. 

Personal data transfers are also a live issue for most UK Data Controllers including public authorities. Whether using an online meeting app, cloud storage solution or a simple text messaging service, which one does not involve a transfer of personal data to the US? At present use of such services usually involves a complicated TRA and execution of standard contractual clauses. In the UK, a new international data transfer agreement (IDTA) came into force on 21st March 2022 but it still requires a TRA as well as supplementary measures where privacy risks are identified. 

Has the Trans-Atlantic Data Privacy Framework saved DPOs hours of work? But before you break open the bubbly, it is important to understand that this is just an agreement in principle. The parties will now need to draft legal documents to reflect the agreed principles. This will take at least a few months and will then have to be reviewed by the European Data Protection Board (EDPB) adding more time. And of course there is the strong possibility of a legal challenge especially if the ECJ’s concerns about US surveillance laws are not addressed. Max Schrems said in a statement:

“We already had a purely political deal in 2015 that had no legal basis. From what you hear we could play the same game a third time now. The deal was apparently a symbol that von der Leyen wanted, but does not have support among experts in Brussels, as the US did not move. It is especially appalling that the US has allegedly used the war on Ukraine to push the EU on this economic matter.” 

“The final text will need more time, once this arrives we will analyze it in depth, together with our US legal experts. If it is not in line with EU law, we or another group will likely challenge it. In the end, the Court of Justice will decide a third time. We expect this to be back at the Court within months from a final decision.“

“It is regrettable that the EU and US have not used this situation to come to a ‘no spy’ agreement, with baseline guarantees among like-minded democracies. Customers and businesses face more years of legal uncertainty.”

What should organisations do in the meantime? Our view is, if you have any choice in the matter, stick to personal data transfers to adequate countries i.e. those which have been deemed adequate by the UK/EU under Article 45. This will save a lot of time and head scratching conducting TRAs and executing SCCs. Where a US/non-adequate country transfer is unavoidable, a suitable transfer mechanisms has to be used as per Article 45. Of course for genuine one-off transfers the provisions of Article 49 derogations are worth considering. 

Only 2 places left on our Advanced Certificate in GDPR Practice course starting in April. We have also just announced three new GDPR workshops for experienced practitioners.

GDPR News Roundup

So much has happened in the world of data protection recently. Where to start?

International Transfers

In April, the European Data Protection Board’s (EDPB) opinions (GDPR and Law Enforcement Directive (LED)) on UK adequacy were adopted. The EDPB has looked at the draft EU adequacy decisions. It acknowledge that there is alignment between the EU and UK laws but also expressed some concerns. It has though issued a non-binding opinion recommending their acceptance. If accepted the two adequacy decisions will run for an initial period of four years. More here.

Last month saw the ICO’s annual data protection conference go online due to the pandemic. Whilst not the same as a face to face conference, it was still a good event with lots of nuggets for data protection professionals including the news that the ICO is working on bespoke UK standard contractual clauses (SCCs) for international data transfers. Deputy Commissioner Steve Wood said: 

“I think we recognise that standard contractual clauses are one of the most heavily used transfer tools in the UK GDPR. We’ve always sought to help organisations use them effectively with our guidance. The ICO is working on bespoke UK standard clauses for international transfers, and we intend to go out for consultation on those in the summer. We’re also considering the value to the UK for us to recognise transfer tools from other countries, so standard data transfer agreements, so that would include the EU’s standard contractual clauses as well.”

Lloyd v Google 

The much-anticipated Supreme Court hearing in the case of Lloyd v Google LLC took place at the end of April. The case concerns the legality of Google’s collection and use of browser generated data from more than 4 million+ iPhone users during 2011-12 without their consent.  Following the two-day hearing, the Supreme Court will now decide, amongst other things, whether, under the DPA 1998, damages are recoverable for ‘loss of control’ of data without needing to identify any specific financial loss and whether a claimant can bring a representative action on behalf of a group on the basis that the group have the ‘same interest’ in the claim and are identifiable. The decision is likely to have wide ranging implications for representative actions, what damages can be awarded for and the level of damages in data protection cases. Watch this space!

Ticketmaster Appeal

In November 2020, the ICO fined Ticketmaster £1.25m for a breach of Articles 5(1)(f) and 32 GPDR (security). Ticketmaster appealed the penalty notice on the basis that there had been no breach of the GDPR; alternatively that it was inappropriate to impose a penalty, and that in any event the sum was excessive. The appeal has now been stayed by the First-Tier Tribunal until 28 days after the pending judgment in a damages claim brought against Ticketmaster by 795 customers: Collins & Others v Ticketmaster UK Ltd (BL-2019-LIV-000007). 

Age Appropriate Design Code

This code came into force on 2 September 2020, with a 12 month transition period. The Code sets out 15 standards organisations must meet to ensure that children’s data is protected online. It applies to all the major online services used by children in the UK and includes measures such as providing default settings which ensure that children have the best possible access to online services whilst minimising data collection and use.

With less than four months to go (2 September 2021) the ICO is urging organisations and businesses to make the necessary changes to their online services and products. We are planning a webinar on the code. Get in touch if interested.

AI and Automated Decision Making

Article 22 of GDPR provides protection for individuals against purely automated decisions with a legal or significant impact. In February, the Court of Amsterdam ordered Uber, the ride-hailing app, to reinstate six drivers who it was claimed were unfairly dismissed “by algorithmic means.” The court also ordered Uber to pay the compensation to the sacked drivers.

In April EU Commission published a proposal for a harmonised framework on AI. The framework seeks to impose obligations on both providers and users of AI. Like the GDPR the proposal includes fine levels and an extra-territorial effect. (Readers may be interested in our new webinar on AI and Machine Learning.)

Publicly Available Information

Just because information is publicly available it does not provide a free pass for companies to use it without consequences. Data protection laws have to be complied with. In November 2020, the ICO ordered the credit reference agency Experian Limited to make fundamental changes to how it handles personal data within its direct marketing services. The ICO found that significant ‘invisible’ processing took place, likely affecting millions of adults in the UK. It is ‘invisible’ because the individual is not aware that the organisation is collecting and using their personal data. Experian has lodged an appeal against the Enforcement Notice.

Interesting that recently the Spanish regulator has fined another credit reference agency, Equifax, €1m for several failures under the GDPR. Individuals complained about Equifax’s use of their personal data which was publicly available. Equifax had also failed to provide the individuals with a privacy notice. 

Data Protection by Design

The Irish data protection regulator issued its largest domestic fine recently. Irish Credit Bureau (ICB) was fined €90,000 following a change in the ICB’s computer code in 2018 resulted in 15,000 accounts having incorrect details recorded about their loans before the mistake was noticed. Amongst other things, the decision found that the ICB infringed Article 25(1) of the GDPR by failing to implement appropriate technical and organisational measures designed to implement the principle of accuracy in an effective manner and to integrate the necessary safeguards into the processing in order to meet the requirements of the GDPR and protect the rights of data subjects (aka DP by design and by default). 

Data Sharing 

The ICO’s Data Sharing Code of Practice provides organisations with a practical guide on how to share personal data in line with data protection law. Building on the code, the ICO recently outlined its plans to update its guidance on anonymisation and pseudonymisation, and to explore the role that privacy enhancing technologies might play in enabling safe and lawful data sharing.

UK GDPR Handbook

The UK GDPR Handbook is proving very popular among data protection professionals.

It sets out the full text of the UK GDPR laid out in a clear and easy to read format. It cross references the EU GDPR recitals, which also now form part of the UK GDPR, allowing for a more logical reading. The handbook uses a unique colour coding system that allows users to easily identify amendments, insertions and deletions from the EU GDPR. Relevant provisions of the amended DPA 2018 have been included where they supplement the UK GDPR. To assist users in interpreting the legislation, guidance from the Information Commissioner’s Office, Article 29 Working Party and the European Data Protection Board is also signposted. Read what others have said:

“A very useful, timely, and professional handbook. Highly recommended.”

“What I’m liking so far is that this is “just” the text (beautifully collated together and cross-referenced Articles / Recital etc.), rather than a pundits interpretation of it (useful as those interpretations are on many occasions in other books).”

“Great resource, love the tabs. Logical and easy to follow.”

Order your copy here.

These and other GDPR developments will also be discussed in detail in our online GDPR update workshop next week.

The Brexit Trade Deal: Implications for Data Protection and International Transfers

December 2020 Update: This post was originally titled “Brexit, Trade Deals and GDPR: What happens next?’ and published in September 2020. It was updated on 26th December 2020.

So finally the UK has completed a trade deal with the EU which, subject to formal approval by both sides, will come into force on 1st January 2021. The full agreement has now been published and answers a question troubling data protection officers and lawyers alike.

Internation Transfers

On 1st January 2021, the UK was due to become a third country for the purposes of international data transfers under the EU GDPR. This meant that the lawful transfer of personal data from the EU into the UK without additional safeguards (standard contractual clauses etc) being required would only have been possible if the UK achieved adequacy status and joined a list of 12 countries. This was proving increasingly unlikely before the deadline and would have caused major headaches for international businesses.

The problem has been solved albeit temporarily. Page 406 and 407 of the UK-EU Trade and Cooperation Agreement contains provisions entitled, “Interim provision for transmission of personal data to the United Kingdom.” This allows the current transitional arrangement to continue i.e. personal data can continue to flow from the EU (plus Norway, Liechtenstein and Iceland) to the UK for four months, extendable to six months, as long as the UK makes no major changes to its data protection laws (see UK GDPR below). This gives time for the EU Commission to consider making an adequacy decision in respect of the UK, which could cut short the above period. Will the UK achieve adequacy during these 4-6 months? Whilst there is much for the EU to consider in such a short time, I suspect that pragmatism and economic factors will swing the decision in the UK’s favour.

The UK GDPR

Despite the last minute trade deal, on 1st January 2021 The Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 will still come fully into force. These regulations will amend GDPR and retitle it as “UK GDPR”. The amendments are essentially a tidying up exercise. The UK GDPR also deals with post Brexit international data transfers from the UK. More here.

These and other GDPR developments will be discussed in detail in our online GDPR update workshop. 

Whilst staff are still working from home, what better time to train them on GDPR and keeping data safe. Our  GDPR  Essentials  e  learning course can help you do this in less than 45 minutes. 

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