European Union

The Right to be Forgotten Tsunami: What Effect for US Companies

Francoise Gilbert

The so-called Right to Be Forgotten or right of erasure (RTBF) has been the subject of much debate and attention since the publication of the Court of Justice of the European Union (CJEU) opinion in May 2014, in the Costeja v. Google case. The CJEU held that, under certain conditions, a European citizen has the right to demand that a search engine remove links to information pertaining to him that is “inaccurate, inadequate, irrelevant, or excessive,” even if the information is truthful.

Since the publication of the CJEU opinion, search engines have been flooded by delisting requests. According to the Google Transparency Report, as of the end of February 2015, Google has received over 220,000 delisting requests, and has evaluated over 800,000 URLs.

The topic has also garnered the attention of the Article 29 Working Party (A29), which published Guidelines, in late November 2014, to explain the position of the EU Data Protection Authorities. Among other things, the Guidelines provide that delisting requests, when accepted, must be implemented on all domains operated, worldwide, by the entity receiving the delisting request, and not just only on its EU domains.

Interest in RTBF has also expanded outside the European Economic Area (EEA). Cases similar to the Costeja case have been brought in Asia and the Americas. It is clear that a strong current is building. The CJEU Costeja ruling and its aftermath are significant for businesses around the world in many respects. The genie is out of the bottle, and may be sneaking into, and disrupting many businesses.

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Right to be Forgotten – Casting a Wider Net

Francoise Gilbert

The Article 29 Working Party (WP29) has published, in its document WP 225, Guidelines on the Implementation of the Court of Justice of the European Union (CJEU) Judgment on Google Spain and Inc. v. Agencia Espanola de Proteccion des Datos (AEPD) and Mario Costeja GonzalezC-131/12 (Guidelines) to provide its interpretation of the CJEU’s ruling, and identify the criteria that will be used by the EU/EEA Member States Data Protection Authorities when addressing complaints from individuals following a denial of de-listing requests.

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Amended Draft EU Regulation Approved by LIBE Committee on October 21

Francoise Gilbert

A revised draft of the proposed EU Data Protection Regulation was approved by the EU Committee on Civil Liberties, Justice, and Home Affairs on October 21, 2013.

Overall, the amendments strengthen privacy rights of EU residents. The most significant amendment is probably that which sets the maximum fine in case of a violation of the new law. The original draft regulation had set the maximum fine at 1,000,000 Euros or 2% of a company’s worldwide income and had adopted a tiered approach. After this recent set of amendments, fines could reach up to 100,000,000 Euros or up to 5% of a company’s annual worldwide income, whichever is greater.

 

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Accountability and Protection of Personal Data

Alain Bensoussan

In data privacy matters, “accountability” means an obligation to report and explain, combined with principles of transparency and traceability, with a view to identify and document the measures implemented to comply with data privacy law requirements. It also implies an obligation for the data controller to assume liability and warrant a result, namely the efficacy of the data protection and the verifiability of the measures taken to this end.

Accountability thus implies for the data controller not only the obligation to comply with the applicable rules, but also the obligation to demonstrate to the authorities and/or the data subjects how such compliance is ensured. Laws and other texts will gradually integrate accountability requirements for personal data protection. (more…)

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Privacy by Design

Alain Bensoussan

The Privacy by Design (PbD) principle means that privacy and data protection are embedded throughout the entire life cycle of technologies, from the early design stage to their deployment, use and ultimate disposal. This in particular means that the protection of data must be at the heart of a company’s internal processes.

Adopting a PbD approach is a very visible trend in international groups and this trend is expected to grow significantly.

Privacy by Design can serve as a new tool to help companies stand out among their competitors and be a further mark of quality and trust for clients. (more…)

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EU Parliament Resolution for Amendment of Rome II Regulation on Law Applicable to Violations of Privacy

Alain Bensoussan

On May 10, 2012, the European Parliament adopted a resolution (available here) with recommendations to the Commission on the amendment of Regulation (EC) No. 864/2007 on the law applicable to non-contractual obligations, known as Rome II. The Parliament first noted that “the Rome II Regulation lacks a provision for the determination of the law applicable to violations of privacy and rights relating to personality”. (more…)

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Analytics Cookies & Consent Exemption

Alain Bensoussan

Are analytics cookies, i.e., cookies used to measure website audience, subject to the prior consent of Internet users? This article provides insights about the French and European views on this topic.

Background

Directive 2002/58/EC, as amended by Directive 2009/136/EC (known as the
e-Privacy Directive) has reinforced the protection of users of electronic communication networks and services by requiring informed consent before information is stored or accessed in the user’s (or subscriber’s) terminal device. Article 5.3 of the Directive allows cookies to be exempted from the requirement of informed consent, if they satisfy some criteria.

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What the January 25, 2012 Draft of the Proposed EU Data Protection Reform Means for Companies Doing Business with or in the EU

January 27, 2012 – Francoise Gilbert

The comprehensive proposed data protection package that the European Commission unveiled on January 25, 2012 provides a sneak preview of the plans for the European Commission for the reform of the data protection rules in the European Union. It the draft legislative texts are adopted in a form substantially similar to that which was presented in the package, by 2015, the European Union will be operating under a single data protection law that applies directly to all entities and individuals in the Member States. In addition, much of the administrative burden that are currently costing billions of Euros to companies will have been removed. The savings would allow companies to allocate their data protection budget to more meaningful, efficient, data protection practices that are better adapted to the uses of personal data, the new technologies and the 21st century way of life.

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EU Data Protection Overhaul – New Draft Regulation

Francoise Gilbert

Note: This post is superseded by the post above, due to the publication of a new draft of the proposed legislative texts.

The European Commission has just published drafts of the two documents that will form the new legal framework for the protection of personal data throughout the European Economic Area. The draft documents are intended to provide a last opportunity for comments. The final version is expected to be published during the first quarter of 2012, and will come into force two years after publication. Thus, the new rules are currently not expected to be effective before the middle of 2014.

The proposed new legal framework consists of two legislative proposals: a proposal for a General Data Protection Regulation on the protection of individuals with regard to the processing of personal data and on the free movement of such data, which will supersede Directive 95/46/EC; and a proposal for a Police and Criminal Justice Data Protection Directive on the protection of individuals with regard to the processing of personal data by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and the free movement of such data. This article discusses only the Regulation.

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Upcoming New, Streamlined BCR Regime to be Unveiled in Early 2012

Francoise Gilbert
 
Very exciting news were provided at the IAPP EU Conference in Paris, which I have the pleasure of attending.
 
While we had hoped that Viviane Reding, the EU Vice President, would give an overview of the upcoming new EU Data Privacy Regulation, in her keynote address, she focused on what is being planned for the overhaul of the BCR regime.
After noting that, as result of the use of cloud computing services, data are being moved everywhere in the world. 

Ms. Reding encouraged companies to adopt global binding rules that govern the protection of personal information throughout the global enterprise, and to file applications for the approval of BCRs reflecting these global privacy rules.
 
When talking about the upcoming publication of the new Data Privacy Regulation in early 2012, Ms. Reding stated: "My reform will make binding corporate rules binding within companies, but also with respect to third parties. This implies that the rules provide for the necessary legal mechanisms to apply to all entities involved."

  
 

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