European Union

How to Submit a Complaint to the EDPS

Alain Bensoussan

On June 15, 2011, Peter Hustinx, European Data Protection Supervisor (EDPS), and Giovanni Buttarelli, Assistant Supervisor, presented their Annual Report of activities for 2010 (read full report here). This Report covers the sixth full year of activity of the EDPS as a new, independent supervisory body. Peter Hustinx, the EDPS, said it “is fully in line with the need to increase our efforts to ensure a more effective protection of privacy and personal data in a changing world which is increasingly global, Internet driven and dependent on the wide spread use of ICTs in all areas of life.”

This report is a good opportunity to get to know the European guardian of personal data protection. Do you know that you can lodge a complaint to the EDPS? (more…)

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EU Commission Launches Consultation on DBN

Alain Bensoussan

The European Commission has launched a consultation (read EU press release here) on the practical rules needed for the entry into force of the obligation requiring ISPs to inform relevant national authorities of any personal data breaches, introduced by the ePrivacy Directive 2009/136/EC of November 25, 2009.
 
The purpose of the consultation is to seek the views of telecoms operators, Internet service providers, Member States, national data protection authorities and consumer organizations on data breach notification (“DBN”).
 
Stakeholders have until next September 9 to provide their feedback and input on the issues involved.
 
The consultation could result in the proposal by the Commission of “technical implementing measures” to be reviewed by the EU Parliament.
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Large-Scale Police Databases: Creation of a European Agency

Alain Bensoussan

An independent regulatory Agency for EU Member States

The Proposal for a Regulation of the European Parliament and of the Council establishing an Agency for the operational management of large-scale IT systems in the area of freedom, security and justice was reviewed on April 11, 2011, by the Council of the European Union. A political agreement was found in June 2011. (more…)

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Israel Found to Provide Adequate Level for Data Transfers!

Alain Bensoussan

Last April 4, 2011, the EU Article 29 Data Protection Working Party issued an Opinion on the level of protection of personal data in New Zealand. This is the occasion to make a recap on the EU legal rules for transborder flows of personal data, with a focus on the latest country found to provide an adequate level —Israel.

Today, with globalization, it’s common practice for businesses to transfer personal data around the globe. This of course raises issues on the security of such data. The European Union does not allow businesses to send personal data outside its boundaries unless the recipient country provides an adequate level of protection. The last country to join the club of countries with an adequate level: Israel! (more…)

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France: Proposed Legislation to Better Protect the Right to Privacy in the Digital Age

Alain Bensoussan

The European Union is planning to overhaul its data protection regime, notably because of rapid technological developments (social networking sites, blogs, cloud computing, geo-location devices, biometric devices, RFID applications, video surveillance…) and globalization have brought new challenges for the protection of personal data. A French bill has decided to take up these challenges.

Know your rights & Be your own privacy watchdog!

The French data protection framework could be changed by a French bill to better protect the right to privacy in the digital age. The bill was proposed to the Senate on November 6, 2009, and filed for first reading in the National Assembly on March 24, 2010.

This proposed legislation is mainly based on an information report on “privacy in the age of digital memories” issued in May 2009, and which recommended, among other things to enable citizens to become the actors of their own protection. To meet the new challenges of the digital era, the report calls for an increased involvement of individuals in the protection of their own privacy.

How is that to be achieved? The report suggested to educate and raise citizen awareness of their right to privacy and privacy threats from an early age, and to update the Data Protection Act of January 6, 1978 to provide stronger guarantees. 

The bill thus amends the Data Protection Act to reflect the recommendations made in the report, as explained at the time by the then-current Digital Economy Secretary of State Nathalie Kosciusko-Morizet during the “Right to be forgotten” workshop in November 2009.

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More Changes in the EU Data Protection Regime – 2006 Data Retention Directive to be Amended

Francoise Gilbert

The European Commission has announced that it plans to amend the 2006 Data Retention Directive, Directive 2006/24/EC. This Directive states that the national laws of the EU Member States must require providers of publicly available electronic communications services and public communications networks to retain traffic and location data for a period between six months and two years, in order to allow for the investigation, detection and prosecution of serious crime.

According to the Report of the EU Commission, while it is clear that rules on data retention remain necessary as a tool for law enforcement, the protection of victims, and the criminal justice systems, the current regime has many flaws. The report, published in mid April 2011, provides an initial analysis of the problems raised by the current draft of the 2006 Data Retention Directive and explains that the Commission intends to develop a better legal framework that balances the needs of governments, the rights of data subjects, and the financial constraints of the operators. (more…)

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Proposed Overhaul of the 2006 Data Retention Directive

Francoise Gilbert

While the Data Protection regime of the European Union is going through a facelift and amendments are expected to be published by 2012, the European Commission has announced that it is embarking onto another major project that focuses on the protection of personal data and privacy rights. This time, the target is the 2006 Data Retention Directive, Directive 2006/24/EC1. In its Evaluation Report on the Data Retention Directive (Directive 2006/24/EC), COM (2011) 225 (Communication 225), published in April 2011, the European Communication has announced its plan intent to revise the 2006 Directive with a view to proposing an improved legal framework that balances the needs of governments, the rights of data subjects, and the financial constraints of the operators.
 
Communication 225 analyses how the 2006 Data Retention Directive has been implemented (or not) in the national laws of the Member States, with a view to determining whether the 2006 Directive should be amended, in particular with regard to its data coverage and retention periods. The report points to the lack of uniformity and discrepancies in these implementations, identifies deficiencies, and analyses the impact of the retention requirements on economic operators and consumers. It also evaluates the implications of the Directive on the protection of fundamental rights, in view of the criticisms that have been made with respect to the retention of personal data for national security reasons. The report concludes that the provisions set forth in the 2006 Data Retention Directive need improvement and indicates how the European Commission plans to drive the preparation of an amendment. 

(more…)

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Privacy Laws may be a Barrier to the Taking of Evidence Abroad

Francoise Gilbert

Litigation and trials are handled in the United States in a manner that is significantly different from that which prevails in other countries. While broad discovery is available here, the gathering and use of evidence is much more limited abroad. For years, there have been disputes between US litigants and the foreign parties who were requested to produce information and documents for use in US courts.  While the 1970 Hague Convention on the Taking of Evidence in Civil and Commercial Matters has provided rules for the regulated taking of evidence, there are still many barriers to the gathering of evidence from foreign parties.  One of them is the data protection laws of many countries, especially those in the European Union and the European Economic Area.  (more…)

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No Attorney Client Privilege for In-House Lawyers Under EU Law

Francoise Gilbert

On September 14, 2010 the European Court of Justice (ECJ) confirmed that there is no attorney-client privilege under EU law for communications with in-house counsel when a company is under investigation by the European Commission.

In its ruling in the case of Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v European Commission, the European Court of Justice affirmed a prior decision of the European General Court that had rejected a claim for legal professional privilege over the company’s communications with its in-house lawyer. The court reasoned that in-house lawyers are economically dependent on their employers, and thus cannot be regarded as independent. (more…)

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