International transfers: what will be the effect of a no deal Brexit?

Published by Alisha McKerron on 22 August 2019

With a no deal Brexit looking like a genuine possibility on the 31st of October, it’s worth considering afresh its implications on cross border data flows, from the point of view of EEA organisations,which will continue to be subject to the General Data Protection Regulation (GDPR), and UK organisations (which shall become subject to a UK version of GDPR). The good news is that the UK government has done what it can to ease the process.

Personal data flowing into the UK from the EEA

For transfers of data into the UK, a no deal Brexit will mean that EEA organisations have to legitimise the flow of personal data into the UK. This is because the UK’s status will change (under GDPR) to that of a third country and rather importantly, cross-border transfers to third countries are prohibited (without a lawful data transfer mechanism, that is)! In other words, the UK would become like any other non-EU country with respect to data transfers any EEA organisations would need a lawful data transfer mechanism (under art. 44, GDPR) to continue to transfer personal data.

UK organisations receiving personal data from EU organisations will therefore have to request such EU organisations to use a suitable cross border transfer mechanism.

If the UK is recognised as an “adequate” country, (under art. 45(1), GDPR) the status quo could continue, without having to implement any other transfer mechanism. But achieving adequacy status requires satisfying the EU Commission that the UK has an equivalent level of protection to that of the EU. This may take some time to determine because although the UK has adopted the GDPR into its domestic legislation, it has far reaching government surveillance powers which may adversely effect data subjects privacy rights. Until this issue has been resolved, EEA organisations will have to look to other transfer mechanisms.

EU Commission approved standard contractual clauses may be a suitable choice, as they are widely used for transfers around the world and could easily be introduced into existing documentation. However their validity is currently being questioned in a case before the European Court of Justice (Schrems II) a final decision should come out around the end of this year.

A regulatory approved set of rules (under art. 47, GDPR) binding a group of undertakings, or group of enterprises engaged in a joint economic activity, could be considered, but these require time and money to set up.

Needless to say, it will be up to EU organisations to decide which mechanism to use. The European Data Protection Board’s “Information note on data transfers under the GDPR in the event of no-deal Brexit” should help them make the correct decision. But what about data flows from the UK to the EU?

Personal data flowing out of the UK to the EEA

For transfers in the other direction, what was said above pretty much applies in reverse (albeit under the UK’s version of the GDPR, instead of the real thing). The status of EU member states (from the UK’s point of view) will change to that of ‘third countries’, and a data transfer mechanism will be required, in order to continue transferring personal data. However, cross-border transfers will be easier because the UK has made it clear it intends to permit data to flow from the UK to EEA member states. It has also committed transitionally to recognising EEA member states and Gibraltar as “adequate” and so data transfer can continue as it currently is.

Personal data flowing out of the UK to countries that are not EEA member states

Transfers to third countries which are not EEA member states will stay the same too; the UK government will mirror the status quo of GDPR in the EU by adopting the same approach as the EU. It will recognise the same list of countries as being “adequate”, recognise the standard contractual clauses approved by the European Commission and any binding corporate rules approved by supervisory authorities. Interestingly, the UK’s version of GDPR will have an extraterritorial jurisdiction and apply to the EEA! This is all explained in the UK government guidance note entitled “Amendments to the UK data protection law in the event the EU Leaves the EU without a deal”. So what steps should UK organsiations take to protect themselves?

What you should do

UK organisations need to assist their EEA stakeholders/organisations in assessing their exposure to cross-border transfer to the UK. Both parties should consider the necessity of cross-border transfers. Perhaps data flows could be minimised or even temporarily stopped, pending a favourable UK adequacy decision. If their EEA stakeholders/organisations continue to transfer any personal data to them, they must use a suitable transfer mechanism under GDPR. Whilst the outcome of the Schrems II case is pending, standard contractual clauses should be avoided even though they are approved.

Organisations in the UK have somewhat less cause for concern, since the UK has committed transitionally to recognising EEA member states and Gibraltar as “adequate” and so data transfers to the EEA member states can continue as they are. However UK organisations should review their documentation (for example, what their privacy notices and data processing agreements say about international transfers, since EEA transfers will now fall into this category) and maintain organisational awareness of the issue.

Aside from cross border transfers they should also consider whether they have to appoint a representative in a EEA member state under article 27 of the GDPR- another side effect of becoming a third country. The same question needs to be considered by EEA member states in relation to the UK.

Cross Border Transfers: What should companies be doing pending the judgement of Schrems II?

Published by Alisha McKerron on 19 August 2019

International transfers

Under the General Data Protection Regulation (GDPR), we are not allowed to transfer personal data to countries outside the European Economic Area (EEA). If we do, we must use a lawful method of cross border transfer (art. 44 GDPR) which is designed to ensure an equivalent level of protection to that is in the EU.

This seems straightforward; it is merely a question of identifying what lawful methods of cross border transfers are available, and choosing the least onerous one. In reality, however, it is anything but, especially with Brexit looming and two important cases pending in the Court of Justice of the European Union (CJEU).

SCC and the EU-US Privacy Shield

Two popular methods of transfer are being challenged in the CJEU – namely, transfers on the basis of EU Commission approved standard contractual clauses (SCC) in the case of 311/18 (also known as Schrems II), and transfers on the basis of there being an adequate EU-US Privacy Shield, in the case of 511/18 La Quadrature du Net. (It’s worth noting that until either challenge is upheld, both methods continue to be valid).

La Quadrature du Net has been postponed, pending the outcome of the Schrems II case. A decision in the Schrems II case is unlikely before the end of 2019 or early 2020, although a hearing of Schrems II took place on 9 July this year. Whilst we wait for a decision, we would be foolish to ignore the fact that a successful challenge will put businesses in a hugely difficult and worrying position.

If SCC and the EU-US Privacy Shield are no longer valid

For starters, SCC and the Shield are widely used by businesses within the European Economic Area (EEA) to legitimise the transfer of personal data to countries outside the EEA. Alternative methods of transfer are not really suitable because they are either limited, expensive, take time to put in place, are not yet available or a combination of all of those things.

If either of these methods are struck down, there could be rather unpleasant consequences: the court could halt data flows outside the EU, third parties could claim for compensation, and possible GDPR revenue-based fines and regulatory sanctions could follow. Companies would also have to pay the cost of remedying the problem as soon as a solution was found.

You may be wondering why we could be placed in this situation, after using transfer methods which have, after all, been approved by the Commission. Shouldn’t data controllers or processors be found accountable only to the extent that they did not adhere to the SCC? Perhaps the CJEU will find that even if transfers to the U.S. are problematic organizations, do not have to stop using SCC or the Shield; instead, data protection authorities would have to suspend problematic data flows and the Commission would be asked to revise the SCC and reconsider the Shield.

However this line of thinking ignores a central challenge that is being made in the Schrems II case – namely, the failure of the SCC to provide EU citizens with a meaningful redress to mass surveillance by US authorities.

This failure, according to DLA Piper, has given rise to the widely held expectation amongst privacy professionals that the CJEU will reach a finding to invalidate SCC (which would be consistent with its approach in an earlier Schrems I case ). Worse still, once a decision has been made by the CJEU, it will take effect immediately and apply retroactively!

What you should do

Accordingly, it is vital that you plan for the worst – particularly given that any infringement of the of GDPR regulations has the potential to attract a fine of anything up to 4% of an organisation’s annual worldwide turnover, or €20,000,000 – whichever is largest (!).

You should assess your exposure to cross-border transfers of data (by finding out to whom, where and on what basis are you transferring personal data). You should draw up an action plan – for example, consider either stopping some types of cross border transfers, or investigate alternative methods of transfer. Perhaps you could use data centres inside the EEA. You should discuss contingency plans internally and with suppliers.

However, the principle of safety in numbers might well still apply; you will certainly not be the only one to be affected, should either the SCC or the Shield be struck down by the CJEU. There may be a period of leniency, since there are no readily available alternatives for large-scale cross border transfers of personal data to outside the EEA. In any case, contingency planning should help you assess the impact of the CJEU’s decision and enable you to hit the ground running.

Useful Article: UK – Liability Limits for GDPR in Commercial Contracts – the Law and Recent Trend

Published by Alisha McKerron on 5 March 2019

In her article (listed in the Menu of this blog) entitled GDPR is Coming: 7 Steps Processors Need to Take to be Compliant (12 December 2017), Alisha sets out mandatory provisions (concerning data processors), which must be inserted in data processing agreements (art. 28 GDPR). Consequences of contractual breaches or non compliance with GDPR are not discussed in any detail.

This important topic is discussed in DLA Piper’s article (7 February 2019) UK: Liability Limits for GDPR in Commercial Contracts – the Law and Recent Trends which looks at how to allocate the risk and liability when negotiating commercial contracts. It considers:

  • Obligations- the source of liability;
  • Types of liability;
  • Limits  of liability.

It concludes that:

“Limiting financial liability under GDPR has been made much more complex than under the Data Protection Act 1998, both because the nature of the obligations placed on both parties has changed and because the consequences of breaches are much more serious. Parties looking to limit their exposure should be realistic and not assume that it will be either possible or desirable to simply pass liability to the other party under the contract in all circumstances, instead, they will need to take a more balanced approach to liability, based on the terms of GDPR and who has caused the loss in question to arise.”

Useful article: reaching the end of your GDPR journey – what should you be thinking about now?

Published by Alisha McKerron on 27 February 2019

In his article GDPR nine months on | What should you be thinking about now? Osborne Clark lists nine items to consider:

  • Updates to existing policies and procedures
  • New policies or procedure
  • Supplier relationships
  • Privacy Impact Assessments
  • GDPR training refresh
  • Data transfers and no-deal Brexit
  • Security breaches and ICO enforcement
  • Compliance strategy
  • One year audit

This is a useful continuation of A GDPR Journey: Where to Start and What to do Next, (listed in the Menu of this blog) depending where you are on your GDPR journey.

What Impact do Search Engines have on Individual’s Reputation and does the “new” Right to be Forgotten Assist in any way?

Introduction

Published by Alisha McKerron on 25 February 2019

What would we do without modern day commercial search engines? For starters it would take us much longer and require much more effort to find answers to everyday questions. Search engines allow us to find the proverbial needle in a haystack.

At first glance this may seem like a good thing, but what if the search results produce links to incriminating information about us. What protection if any do private individuals have?

Google vs Spain

This question was considered in a landmark case of Google v. Spain (C‑131/12). The case involves an individual who requested the removal of a link to a digitized 1998 article in La Vanguardia newspaper about an auction for his foreclosed home, for a debt that he had subsequently paid. He asked the news organisation to remove the article and Google to remove any links to it. The Spanish Data Protection Agency said that the news organisation should be left alone but that Google should remove any links to the article.

On appeal the European Court of Justice affirmed the judgment of the Spanish Data Protection Agency i.e. it upheld press freedoms by rejecting a request to have the article concerning personal bankruptcy removed from the web site of the news organization. However, the Court ruled that European citizens have a right to request that commercial search firms, such as Google, that gather personal information for profit, should remove links to private information when asked, provided the information is no longer relevant. The Court found that the fundamental right to privacy is greater than the economic interest of the commercial firm and, in some circumstances, the public interest in access to information.

(It’s worth mentioning that in November 2018 Google held an 89.1% market share in the UK.)

Google subsequently set up an online removal-of-links-from-its-search-results form for customers to use. It has also published a useful guide entitled “Fix problems & request removals” on Google Search Help. The guide explains the few instances Google will remove content from Search which includes sensitive personal information, like your bank account number, or an image of your handwritten signature, or a nude or sexually explicit image or video of you that’s been shared without your consent. Interestingly the guide does not refer to data that is “inadequate, irrelevant or excessive in relation to the purposes of the processing” (para 92 Google v. Spain).

Right to erasure (“right to be forgotten”) (art. 17 GDPR)

Two years after the Google v. Spain judgement, the General Data Protection Regulations (GDPR) 2016 were published which included a right to erasure (art. 17). This is also know as the right to be forgotten and has been described as “the right to silence on past events in life that are no longer occurring.” It is distinct from a private right (which involves information which is not publicly known) because it involves removing information that was publicly known at a certain time and not allowing third parties to access the information. Although referred to as a new right it isn’t; it existed to an extended degree in EU law, and in the first data protection laws enforced in Europe.

Under GDPR, we have the right to have our personal data erased in six circumstances:

  • if the organisation no longer needs our data;
  • we initially consented to the use of our data, but have now withdrawn our consent;
  • we have objected to the use of our data, and our interests outweigh those of the organisation using it;
  • the organisation has collected or used our data unlawfully;
  • the organisation has a legal obligation to erase our data; or
  • the data was collected from us as a child for an online service.

Exemptions to the right to erasure (art. 17(3) GDPR)

Our right to erasure does not apply if processing is necessary for one of the following reasons (GDPR art.17(3)):

  • to exercise the right of freedom of expression and information;
  • to comply with a legal obligation;
  • for the performance of a task carried out in the public interest or in the exercise of official authority;
  • for archiving purposes in the public interest, scientific research historical research or statistical purposes where erasure is likely to render impossible or seriously impair the achievement of that processing; or
  • for the establishment, exercise or defence of legal claims.

Manni

In summary our right to erasure is limited and is trumped by certain exemptions; freedom of expression and information (or the right of the public to have access to information) being one of them. This is demonstrated in the 2015 court ruling in the Manni case (C-398/15), which clarifies that an individual seeking to limit the access to his/her personal data published in a Companies Register does not have the right to obtain erasure of that data, not even after his/her company ceased to exist.

Mr Manni requested his personal data to be erased from the Public Registry of Companies after he found out that he was losing clients who performed background checks on him through a private company that specialised in finding information in the Public Registry. This happened because Mr Manni had been an administrator of a company that was declared bankrupt more than 10 years before the facts in the main proceedings. In fact, the former company itself was removed from the Public Registry. The court concluded that Mr Manni did not have the right to obtain erasure from the Companies Register, but he did have a right to object.

Conclusion

Case law shows that the web and search engine results impact individual’s reputation and not always in a positive way. Privacy law does protect us.

The right to be forgotten under GDPR gives us the right to have our personal data erased but only in limited circumstances (listed above) and not if any of the exemptions (listed above) apply. One of these exemptions is freedom of expression. The effect of this is to exempt companies listed as “media” companies.

The Google v. Spain case gives us a right to request that commercial search firms, that gather personal information for profit, should remove links to private information when asked, provided the information is no longer relevant.

So, what practical steps should we take if searching our name on the internet brings back a link to information about us, and this is having a negative effect on our privacy?

Personal data

The first step we should take is to ask the publisher to remove the personal data from its website; that way it will no longer appear in search results. Should the publisher refuse to do so and we are satisfied that one of the six circumstances mentioned above applies, and none of the exemptions mentioned above apply, we should complete the Information Commissioner’s Office (ICO) online complaint form so that ICO can pursue the matter further on our behalf.

If we are not satisfied, that one of the six circumstances mentioned above apply we could ask the publisher to use the robot exclusion standard to inform web robots or crawlers not to process or scan the page with the personal data. This will stop any links appearing in search results. However, the publisher may well reject this request on the basis that its freedom of speech trumps our right to privacy.

Search result links to personal data

If the publisher refuses to remove the personal data from its website, the next step we should take is to complete Google’s an online removal-of-links-from-its-search-results form. Although the personal data shall remain on a website it will be less visible if links are removed. Should Google refuse to remove search result links we should complete ICO’s online complaint form  but only if we are satisfied that the personal data is “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed” and that our right to privacy is greater than the economic interest of Google and the public interest in access to information.

If we are unsuccessful on all of these fronts, it may be worth writing an article in rebuttal or an article which others may find useful. Although searching our name on the internet will continue to bring back a link to information about us which has a negative effect on our privacy, it will now bring back our positive article as well. The more meaningful articles we publish the better.


A GDPR Journey: Where To Start and What To Do Next

Published by Alisha McKerron on 11 February 2019

The European Union’s General Data Protection Regulations (GDPR) impose many obligations on anyone who processes personal data, with substantial fines (art. 83) for any breaches. Although some of these obligations are not altogether new, they are much more extensive: having an extra material and territorial scope (art. 3), extending to data processors, (art.28) and giving data subjects enhanced rights (ch.III). The definition of personal data (art. 4) is much broader too. There is much more to worry about!

If you are non-complaint, what should you do, particularly if you do not have a budget to spent on making amends? Perhaps the starting point is for you to view privacy compliance, as the end destination of an ongoing journey. Your focus should be on travelling in the right direction and being able to demonstrate this. This way, regulators are more likely to focus less on you, and more on those who don’t comply or won’t comply. So where should one start?

The most visible starting point, for most organisations, has been the publication of a privacy notices before GDPR came into force. Less visible is the appointment of data protection officers (DPO) (art.37) which is required under the new regulations if you carry out certain types of processing activities. DPO’s can now report to one lead supervisory authority in instances of multi cross border processing which is a welcome change.

Privacy Notice

Preparing a privacy notice, is a good place for you to start, for a variety of reasons. Firstly, the content (art.13) of the privacy notice is regulated, which means you will have to find answers to the following questions, to prepare it correctly:

  • Who is collecting the data?
  • What data is being collected?
  • What is the legal basis for processing the data?
  • Will the data be shared with any third parties?
  • How will the information be used?
  • How long will the data be stored for?
  • What rights does the data subject have?
  • How can the data subject raise a complaint?

To find the answers you will need to update exiting data maps or prepare new ones. Data maps must reflect the current situation on an ongoing basis. You will need to show that you have at least one of the legal bases (art. 6) for processing. If you are relying on old consents, you will need to refresh them, so that they fall into the new definition of consent (art 4); if you are relying on legitimate interest you should complete a legitimate interest assessment. Checking your legal bases will help you better understand how you are using personal data.

You will also need to find out if the personal data you are processing is shared with others and mention this in your notice. Under the new regulations you are obliged to have a data processing agreement with every data processor you use. (Revising existing data processing agreements and/ or agreeing new ones, is an item to put on your things-to-do-next list).

The position regarding restricted transfers of personal data outside non EU countries has not changed that much: transfers continue to be restricted. There is however the thorny issue of Brexit looming. Have a look at the Information Commissioners Office guidance to help you decide if you will be effected.

If you are making international transfers of personal data, you must disclose this (art. 15(2)) and the permissible ground (ch. 5) you are relying on to do so. Grounds include: the European Commission made an “adequacy decision” about the country in which the receiver is based, or the restricted transfer is covered by appropriate safeguards (including binding corporate rules) or the restricted transfer is covered by an exception.

You must also disclose the use of cookies or similar technology under the GDPR and under the Privacy and Electronic Communication Regulation (PECR ) and ensure that you have a legal base under GDPR for any processing that ensues. (It is worth taking the time to understand the overlap between the PECR and GDPR as it can be confusing.)

GDPR provides that you must not keep personal data for longer than you need it and must disclose how long you will store the information. If you do not already have a data retention policy with a document schedule you should prepare one.

You must notify your data subjects of their enhanced privacy rights and new privacy rights and be prepared to respond if they choose to exercise their rights. New privacy rights include data portability (art. 20), the right to be forgotten (art.17) and safeguards for data processing by automated means (art. 22). (Ensuring that you have updated your policies and procedures to help your staff respond to new rights as well as the old enhanced rights (e.g., data subject access requests) in a correct and consistent way, is another item to add to your list).

Obligations with time constraints

After publishing your privacy notice, the next thing you should do is to identify any privacy obligations (whether under the regulations or by agreement) with time constraint attached. Reputational damage for non-compliance should not be underestimated.

One such obligation is the new duty to report personal data breaches (art.33) to a supervisory authority and affected individual. An internal breach register must also be maintained. GDPR requires you to notify the supervisory authority, without undue delay and not later than 72 hours after becoming aware of it, if the breach is likely to result in risks to rights and freedoms of a natural person. If the data breach is likely to result in high risk to the rights and freedoms of natural persons the data subject must be informed too, without undue delay. Questions worth considering include:

  • Do you have something in place (e.g. an API or web forms to document paper incidents) that facilitates both identifying and reporting on personal data breaches?
  • Do you have a consistent approach (i.e. risk assessment) to determine whether an incident is subject to a notification obligation or are you possibly over-notifying?
  • Are you determining jurisdictions impacted and the number of individuals involved on a consistent basis?
  • Does it make sense to create a diverse team to triage and risk rank to ensure that incidents are being escalated appropriately?

Another obligation with a time constraint, is revised subject access requests (art.12 and 15). Now a request can be communicated over the phone (art 15 (3)) and associated costs can’t be claimed. You must respond without undue delay and at the latest within one month (as opposed to the old 40 days) of receipt. The same new time period applies to the right to rectification (art.16). Again, it is worth checking that you have sufficient resources and policies and procedures in place to respond.

Conclusion

The most helpful way of tackling GDPR compliance is to view it as a journey to an end destination. Expect to discover compliance weaknesses on your journey and compile a things-to-do-next list to help propel you forward. To begin with it may feel l like your end destination is getting further away rather than closer, but don’t let this bog you down. What’s important is that you continually move forward in the right direction, are transparent with how you collect and process personal data and are constantly striving to keep your customer’s personal data secure.

Where Should I Go to Find Answers to my Privacy Questions?

Published by Alisha McKerron on 30 January 2018

screenshot 2019-01-30 at 10.58.49

It has been eight months since the General Data Protection Regulation (GDPR) came into force. But it has been five years in the making. During this time a wealth of online resources have slowly been created in response to the GDPR and people’s queries about it.

However, reviewing all the information on the web takes time, especially if you don’t know where to look. You might, therefore, prefer to use a data specialist. But if you are the-do-it yourself type, or simply do not have the money to spend on a data specialist, I may be able to help. Below is a table of useful links I have used when researching privacy questions of my own. Since January heralds the anniversary of Data Protection Day (28 January) it seems like an opportune time to share this with you .

TOPICWEBSITE
EU HandbookHandbook European Data Protection Law
The Information Commissioner’s Office (ICO) Guide; ICO is the UK’s supervisory body set up to uphold information rightsICO Privacy Guide
EU Privacy Legislation on EUR-lexGDPR 2016 easy layout GDPR
Charter of Fundamental Rights of the European Union 2016
Directive on Privacy and Electronic Communications 2002
Convention for Human Rights 1950
UK LegislationData Protection Act of 2018
Privacy and Electronic Communications (EC Directive) Regulations 2003
The Human Rights Act 1998
Summaries of privacy case lawFRA Case-law Database Companion for the gdpr professional
European Data Protection Board Guidance which contributes to the consistent application of data protection rules throughout the European Union, and promotes cooperation between the EU’s data protection authoritiesEDPB Guidance
National Cyber Security Centre Guidance which was set up to help protect our critical services from cyber-attacks, manage major incidents, and improve the underlying security of the UK Internet through technological improvement and advice to citizens and organisationsNCSC Guidance
The Internet Advertising Bureau Guidance in relation to digital advertisingIAB Guidance
Direct Marketing Association (UK) Ltd (DMA) in relation to advertisingDMA Guides
Webinars worth watchingGDPR Legal Facts And a Call to Action
ICO Personal Data Breach Reporting
DPN- Cookies:GDPR & e-Privacy
DPN- Legitimate Interests
https://www.radarfirst.com/resources/webinars/
Newsfeed / website worth signing up toLexology so that you can access to article like: 5 Things You Should Know About Data Protection Impact Assessments under the GDPR or How Direct Marketing is Impacted by GDPR and PECR
Data Protection Network which posts interesting articles
DMA so that you can access to articles like: eprivacy-regulation-what-will-it-change?
Vlogs worth checkingKemp IT LAW
Blogs worth checkingGiovanni Buttarelli’s blog
DLA Piper
Lexblog.com Eustaran
Association worth joining although there is an annual membership feeIAPP