Posts in International.
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On May 14, 2024, the UK National Cyber Security Centre (“NCSC”) and three major UK insurance associations (Association of British Insurers (“ABI”), British Insurance Brokers’ Association (“BIBA”) and International Underwriting Association (“IUA”)), published joint guidance on the approach to ransom payments (the “Guidance”). The Guidance was prepared for businesses experiencing a ransomware attack with the aim of reducing the overall impact of the incident on the business. The Guidance is intended, among other things, to reduce the number of ransoms paid by ransomware victims in the UK, and the size of the ransoms paid in cases where the victims do elect to pay. 

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On May 1, 2024, the UK Information Commissioner’s Office (“ICO”) and the UK regulator for communications and online safety, Ofcom, issued a joint statement regarding their collaboration on the regulation of online services where online safety and data protection intersect. This statement builds on the joint statement published in 2022. The latest statement outlines several areas of collaboration between the ICO and Ofcom.

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The Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth recently released a report on Enabling Beneficial and Safe Uses of Biometric Technology Through Risk-Based Regulations (the “Report”).  The Report examines global laws and regulations that target biometric data and encourages adoption of a risk-based approach.  According to the Report, biometric technology applications are growing and can provide societal and economic benefits. However, there are recognized concerns over potential harms for individuals and their rights, and data protection and privacy laws are increasingly targeting the collection and use of biometric data.

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On April 12, 2024, the UK Information Commissioner’s Office (“ICO”) launched the third installment in its consultation series examining how data protection law applies to the development and use of generative AI. This installment focuses on how the data protection principle of accuracy applies to the outputs of generative AI models, and the impact that accurate training data has on the output. The two previous installments discussed the lawful basis for web scraping to train generative AI models, and purpose limitation in the generative AI lifecycle. 

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On March 26, 2024, the French data protection authority (the “CNIL”) published the 2024 edition of its Practice Guide for the Security of Personal Data (the “Guide”). The Guide is intended to support organizations in their efforts to implement adequate security measures in compliance with their obligations under Article 32 of the EU General Data Protection Regulation. In particular, the Guide targets DPOs, CISOs, computer scientists and privacy lawyers.

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On March 22, 2024, the Cyberspace Administration of China (the “CAC”) issued the Provisions on Facilitation and Regulation of Cross-Border Data Flows (the “Provisions”), which were effective the same day. The CAC also held a press conference to introduce and explain the Provisions. The Provisions demonstrate that the regulation of cross-border transfers in China is focused on important data and critical information infrastructure operators (“CIIO”), and that the CAC aims to optimize business environment, stabilize foreign investment, and support the data flow between global companies with a Chinese presence.

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On March 18, 2024, the UK Information Commissioner’s Office (“ICO”) published new data protection fining guidance on how the ICO determines penalties and calculates fines. The guidance was subject to a consultation process in 2023, and covers a variety of topics and considerations relevant to penalties and fines, including:

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On March 7, 2024, the Court of Justice of the European Union (“CJEU”) issued its judgment in the case of Endemol Shine (Case C‑740/22). In this case, the CJEU was called upon to assess whether oral disclosure of information could be considered as processing of personal data under the EU General Data Protection Regulation (“GDPR”) and to clarify the relationship between personal data protection and public access to documents.

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On March 13, 2024, the European Parliament adopted the AI Act by a majority of 523 votes in favor, 46 votes against, and 49 abstentions. The AI Act will introduce comprehensive rules to govern the use of AI in the EU, making it the first major economic bloc to regulate this technology.

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On March 7, 2024, the Court of Justice of the European Union (“CJEU”) issued its judgment in the case of IAB Europe (Case C‑604/22). In this judgment, the CJEU assessed the role of the Interactive Advertising Bureau Europe (“IAB Europe”) in the processing operations associated with its Transparency and Consent Framework (“TCF”) and further developed CJEU case law on the concept of personal data under the EU General Data Protection Regulation (“GDPR”).

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On February 28, 2024, President Biden released an Executive Order (“EO”) “addressing the extraordinary and unusual national security threat posed by the continued effort of certain countries of concern to access Americans’ bulk sensitive personal data and certain U.S. Government-related data.” In tandem with the EO, the Department of Justice’s (“DOJ’s”) National Security Division is set to issue an advance notice of proposed rulemaking (“ANPRM”) pursuant to the EO, which directs the DOJ to “establish, implement and administer new and targeted national security programming” to address the threat. The DOJ regulations will identify specific categories of “data transactions” that are prohibited or restricted due to their “unacceptable risk to national security.” 

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On February 28, 2024, the European Data Protection Board (“EDPB”) announced the launch of its latest Coordinated Enforcement Framework action on the right of access. Through the course of 2024, 31 data protection authorities across the European Economic Area, including seven German state-level authorities, will take part in this initiative on the implementation of the right of access. The EDPB selected the right access for its third coordinated enforcement action as it is “at the heart of data protection,” is a right that is very frequently exercised by individuals, and one that is often the basis of complaints to authorities.

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On March 1, 2024, the UK Information Commissioner’s Office (“ICO”) announced that it had issued an enforcement notice and a warning to the UK Home Office for failing to sufficiently assess the privacy risks posed by the electronic monitoring of people arriving in the UK via unauthorized means. The Home Office is the ministerial department of the UK government responsible for immigration, security, and law and order.

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On February 20, 2024, The Centre for Information Policy Leadership at Hunton Andrews Kurth LLP  (“CIPL”) and Theodore Christakis, Professor of International, European and Digital Law at University Grenoble Alpes, released a comprehensive study titled The “Zero Risk” Fallacy: International Data Transfers, Foreign Governments’ Access to Data and the Need for a Risk-Based Approach. In the study, Prof. Christakis makes the case that the EU General Data Protection Regulation (“GDPR”), the Charter of Fundamental Rights of the European Union and EU law, more generally, allow a more nuanced and risk-based approach to data transfers than the restrictive approach often applied. CIPL and Prof. Christakis provide an approach that outlines data protection measures that are proportionate to the risks at hand, and takes into account the nature of the data, the likelihood of access by foreign governments, and the severity of the potential harm.

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On February 23, 2024, the UK Information Commissioner’s Office (the “ICO”) reported that it had ordered public service providers Serco Leisure, Serco Jersey and associated community leisure trusts (jointly, “the Companies”) to stop using facial recognition technology (“FRT”) and fingerprint scanning (“FS”) to monitor employee attendance.

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On January 24, 2024, the European Commission announced that it had published the Commission Decision establishing the European AI Office (the “Decision”). The AI Office will be established within the Commission as part of the administrative structure of the Directorate-General for Communication Networks, Content and Technology, and subject to its annual management plan. The AI Office is not intended to affect the powers and competences of national competent authorities, and bodies, offices and agencies of the EU in the supervision of AI systems, as provided for by the forthcoming AI Act. The Decision details the functions and tasks of the AI Office, such as:

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On February 16, 2024, the UK Information Commissioner’s Office (the “ICO”) published its first piece of guidance on content moderation. The ICO defines content moderation in the guidance as the analysis of user-generated content to assess whether it meets certain standards, and any action a service takes as a result of this analysis. This process includes the processing of personal data and,  according to the ICO in its statement, “can cause harm if incorrect decisions are made,” for example content being incorrectly defined as illegal.

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Recent developments in the Shanghai Pilot Free Trade Zone to facilitate cross-border data transfers are expected to provide greater flexibility in exporting data from China, which has been stymied by the Cyberspace Administration of China (“CAC”)’s strict cross-border data transfer regulations proposed in December 2023. In recent years, the legal framework and practical enforcement for cross-border data transfers in China have undergone significant developments, especially with respect to the CAC’s cross-border data transfer security reviews and standard contractual clauses. The lack of clarity around the CAC’s strict rules for security assessment reviews appears to have caused significant delays in the approval process for cross-border data transfers and concern among international companies who regularly transfer data outside of China. However, it appears that the Shanghai government is likely to permit international companies to transfer data offshore by leveraging its sprawling free trade zones. Shanghai, for example, has recently unveiled new measures aimed at accelerating cross-border data transfers.

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On February 13, 2024, the European Data Protection Board (“EDPB”) adopted Opinion 04/2024 on the notion of the main establishment of a controller in the Union under Article 4(16)(a) of the EU General Data Protection Regulation (“GDPR”) (the “Opinion”).

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On February 9, 2024, Hunton Andrews Kurth attorneys, David Dumont and Laura Léonard, and Centre for Information Policy Leadership Director of Privacy and Data Policy, Natascha Gerlach, published an op-ed discussing the implications of the European Commission’s proposal for a Regulation laying down additional procedural rules relating to the enforcement of Regulation (EU) 2016/679 (the “Draft GDPR Procedural Regulation”) and the draft report on the Draft GDPR Procedural Regulation by the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (the “Draft LIBE Report”).

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On February 8, 2024, the French Data Protection Authority (the “CNIL”) announced the priority topics for its inspections in 2024.  

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On February 6, 2024, the UK government published a response to the consultation on its AI Regulation White Paper, which the UK government originally published in March 2023. The White Paper set forth the UK government’s “flexible” approach to regulating AI through five cross-sectoral principles for the UK’s existing regulators to interpret and apply within their remits (read further details on the White Paper). A 12-week consultation on the White Paper was then held and this response summarizes the feedback and proposed next steps.

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In November 2023, the UK Information Commissioner’s Office (“ICO”) wrote to organizations operating 53 of the UK’s biggest websites regarding their compliance with data protection laws when using cookies.  On January 31, 2024, the ICO released a statement on such action noting that it received “an overwhelmingly positive response” with 38 of those organizations having changed their cookie banners in order to come into compliance. Others have either committed to ensuring compliance within a month, or are exploring other solutions such as contextual advertising.

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On January 22, 2024, a draft of the final text of the EU Artificial Intelligence Act (“AI Act”) was leaked to the public. The leaked text substantially diverges from the original proposal by the European Commission, which dates back to 2021. The AI Act includes elements from both the European Parliament’s and the Council’s proposals.

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On January 18, 2024, the European Data Protection Board published a thematic one-stop-shop (“OSS”) case digest titled, “Security of Processing and Data Breach Notification” (the “Digest”). The Digest analyzes a selection of decisions adopted by EU data protection authorities on data security and data breaches. 

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On January 18, 2024, the UK Information Commissioner’s Office (“ICO”) published an updated Opinion on age assurance for the Children’s Code (the “Opinion”). The Children’s Code is a statutory code of practice setting out how information society services likely to be accessed by children should protect children’s information rights online.

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On January 15, 2024, the European Commission released its “report on the first review of the functioning of the Adequacy Decisions adopted pursuant to Article 25(6) of Directive 95/46/EC” (the “Report”). The Report details the results of the European Commission’s assessment of whether 11 jurisdictions (Andorra, Argentina, Canada, the Faroe Islands, Guernsey, the Isle of Man, Israel, Jersey, New Zealand, Switzerland and Uruguay) that benefit from Adequacy Decisions adopted under the repealed Directive 95/46/EC still offer sufficient guarantees to maintain adequacy status under the EU General Data Protection Regulation (“GDPR”).

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On January 15, 2024, the UK Information Commissioner’s Office (“ICO”) announced that it has launched a consultation series on generative AI. The series will examine how aspects of UK data protection law should apply to the development and use of the technology, with the first chapter of the series focusing on when it is lawful to train generative AI models on personal data scraped from the web. The ICO invites all stakeholders with an interest in generative AI to respond to the consultation, including developers and users of generative AI, legal advisors and consultants working ...

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On January 8, 2024, the French Data Protection Authority (the “CNIL”) opened a consultation on its draft guidance for the use of transfer impact assessments (“Guidance”). In describing the Guidance, the CNIL references the decision of the Court of Justice of the European Union in Schrems II and states that exporters relying on tools listed in Article 46(2) and Article 46(3) of the EU General Data Protection Regulation (“GDPR”) for personal data transfers are required to assess the level of protection in the designated third country and the need to put in place additional safeguards (i.e., conduct a transfer impact assessment (“TIA”)). The Guidance is intended to assist data exporters in carrying out TIAs. 

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On December 21, 2023, the Court of Justice of the European Union (“CJEU”) issued its judgment in the case of Krankenversicherung Nordrhein (C-667/21) in which it clarified, among other things, the rules for processing special categories of personal data (hereafter “sensitive personal data”) under Article 9 of the EU General Data Protection Regulation (“GDPR”) and the nature of the compensation owed for damages under Article 82 of the GDPR.

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On December 18, 2023, the updated response from UK Information Commissioner John Edwards to the Data Protection and Digital Information (No 2) Bill (the “Bill”) was published on the website of the Information Commissioner’s Office (ICO). The Commissioner’s original response was published in March 2023. In the latest response, the Commissioner states that he is “pleased to note that government made some changes…in response to my comments,” specifically with regards the definition of “vexatious requests” in respect of requests made to the Information Commissioner’s Office, and the drafting of the changes to the safeguards for processing for research purposes. However, the Commissioner goes on to state that the majority of his comments currently remain unaddressed, including with regards the definition of high risk processing. 

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On December 14, 2023, the Court of Justice of the European Union (“CJEU”) issued its judgment in the case of VB v. Natsionalna agentsia za prihodite (C‑340/21), in which it clarified, among other things, the concept of non-material damage under Article 82 of the EU General Data Protection Regulation (“GDPR”) and the rules governing burden of proof under the GDPR.

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On December 7, 2023, the Court of Justice of the European Union (“CJEU”) ruled that credit scoring constitutes automated decision-making, which is prohibited under Article 22 of the EU General Data Protection Regulation (“GDPR”) unless certain conditions are met. In a case stemming from consumer complaints against German credit bureau SCHUFA, the CJEU found that the company’s reliance on fully automated processes to calculate creditworthiness and extend credit constitutes automated decision-making which produces a legal or similarly significant effect within the meaning of Article 22 of the GDPR.

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On December 12, 2023, the UK Information Commissioner’s Office (“ICO”) announced that it is producing an online resource relating to employment practices and data protection. The ICO also announced that it would be releasing draft guidance on the different topic areas to be included in the resource in stages, and adding to it over time. The ICO provided draft guidance on “Keeping employment records” and “Recruitment and selection” for consultation. The former draft guidance aims to provide direction on compliance with data protection law when keeping records ...

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On December 8, 2023, the European Parliament and the Council reached a political agreement on the EU’s Regulation laying down harmonized rules on Artificial Intelligence (the “AI Act”).

The AI Act will introduce a risk-based legal framework for AI. Specifically, the AI Act will state that: (1) certain AI systems are prohibited as they present unacceptable risks (e.g., AI used for social scoring based on social behavior or personal characteristics, untargeted scraping of facial images from the Internet or CCTV footage to create facial recognition databases, etc.); (2) AI systems presenting a high-risk to the rights and freedoms of individuals will be subject to stringent rules, which may include data governance/management and transparency obligations, the requirement to conduct a conformity assessment procedure and the obligation to carry out a fundamental rights assessment; (3) limited-risk AI systems will be subject to light obligations (mainly transparency requirements); and (4) AI systems that are not considered prohibited, high-risk or limited-risk systems will not be under the scope of the AI Act.

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On November 22, 2023, the Artificial Intelligence (Regulation) Bill was introduced into the UK Parliament’s House of Lords. The purpose of the Bill is to make provision for the regulation of AI and for connected purposes. 

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On November 23, 2023, the UK government’s National Cyber Security Centre (“NCSC”) and the Republic of Korea’s National Intelligence Service (“NIS”) issued a joint advisory detailing techniques and tactics used by cyber actors linked to the Democratic People’s Republic of Korea (“DPRK”) that are carrying out software supply chain attacks. The publication follows the recent announcement of a new Strategic Cyber Partnership between the UK and the Republic of Korea where the two nations have committed to work together to tackle common cyber threats.

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On November 27, 2023, the UK government announced the first global guidelines to ensure the secure development of AI technology (the “Guidelines”), which were developed by the UK National Cyber Security Centre (“NCSC”) and the U.S. Cybersecurity and Infrastructure Security Agency (“CISA”), in cooperation with industry experts and other international agencies and ministries. The guidelines have been endorsed by a further 15 countries, including Australia, Canada, Japan, Nigeria, and certain EU countries (full list here).

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On November 21, 2023, the UK Information Commissioner’s Office (“ICO”) issued a statement explaining that it has recently written to companies operating some of the UK’s most visited websites regarding their compliance with data protection laws when using cookies. The ICO noted that certain websites are not providing users with fair choices as to whether or not they are tracked for personalized marketing purposes, and referred to its guidance on making it simple for users to “Reject All” advertising cookies. 

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On November 9, 2023, the European Parliament adopted, by a majority of 481 votes in favor, 31 votes against and 71 abstentions, the final text of the Data Act. As explained in our previous blog, the Data Act aims to “ensure fairness in the digital environment, stimulate a competitive data market, open opportunities for data-driven innovation and make data more accessible for all” and was initially proposed by the European Commission on February 23, 2022.

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On November 8, 2023, the UK Information Commissioner’s Office (“ICO”) and the European Data Protection Supervisor (“EDPS”) announced they have signed a Memorandum of Understanding (“MOU”) intended to reinforce their “common mission to uphold individuals’ data protection and privacy rights, and cooperate internationally to achieve this goal”. The MOU sets out broad principles of collaboration between the ICO and EDPS and the legal framework governing the sharing of relevant information and intelligence. The ICO and EDPS consider that, when addressing similar issues, reducing divergencies in their regulatory approaches will benefit public and private organizations, individuals, and other stakeholders in the UK and EU.  

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On October 27, 2023, the European Data Protection Board (“EDPB”) adopted an urgent binding decision instructing the Irish Data Protection Commissioner (the “Irish DPC”) to take final measures against Meta Ireland Limited (“Meta”) within two weeks and impose a ban on Meta’s processing of personal data for behavioral advertising based on the contractual necessity and legitimate interests legal bases. The ban would apply across the European Economic Area (“EEA”).

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On November 1, 2023, 29 nations, including the U.S., the UK, the EU and China (full list available here), reached a ground-breaking agreement, known as the Bletchley Declaration. The Declaration sets forth a shared understanding of the opportunities and risks posed by AI and the need for governments to work together to meet the most significant challenges posed by the technology. The Declaration states  that there is an urgent need to understand and collectively manage the potential risks posed by AI to ensure the technology is developed and deployed in a safe, responsible way. The Declaration was signed at the AI Safety Summit 2023, held at Bletchley Park in the UK.

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October 12, 2023, the French Data Protection Authority (the “CNIL”) announced a €600,000 fine for mass media company Groupe Canal+ for failing to comply with its commercial prospecting obligations applicable under the French Post and Electronic Communications Code and several obligations of the EU General Data Protection Regulation (“GDPR”).

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On October 30, 2023, the G7 leaders announced they had reached agreement on a set of International Guiding Principles on Artificial Intelligence (AI) and a voluntary Code of Conduct for AI developers, pursuant to the Hiroshima AI Process. The Hiroshima AI Process was established at the G7 Summit in May 2023 to promote guardrails for advanced AI systems at a global level.

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On October 26, 2023, the UK Online Safety Act (the “Act”) received Royal Assent, making it law in the UK. The Act seeks to protect children from online harm and imposes obligations on relevant organizations, including social media platforms, to prevent and remove illegal and harmful content. In a press release, the UK Government stated that the Act “takes a zero-tolerance approach to protecting children from online harm, while empowering adults with more choices over what they see online.” For example, the Act requires relevant organizations to:

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On October 11, 2023, the French Data Protection Authority (the “CNIL”) published a new set of guidelines addressing the research and development of AI systems from a data protection perspective (the “Guidelines”).

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On October 18, 2023, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth published an opinion piece in the leading European policy outlet, Euractiv, titled “The Time is Now: Why modernising transatlantic cooperation on cross-border law enforcement access to electronic evidence should be a priority.”

The piece argues that at a time of an increased threat of cybercrime, digital fraud, disinformation, and other illicit activities online, we need a holistic discussion between law enforcement, policymakers and privacy communities to balance societal interests and individual rights.

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On September 28, 2023, the Cyberspace Administration of China (“CAC”) released the “Provisions on Regulating and Facilitating Cross-Border Data Flows” for public comment (the “Proposal”). The deadline for public comment on the Proposal was October 15, 2023.

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On October 17, 2023, The First-tier Tribunal of the UK General Regulatory Chamber allowed an appeal by Clearview AI Inc. (“Clearview”) against an enforcement notice and fine issued by the UK’s Information Commissioner’s Office (“ICO”).

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On October 3, 2023, the UK Information Commissioner's Office ("ICO") published new Guidance on lawful monitoring in the workplace, designed to help employees comply with their obligations under the UK General Data Protection Regulation ("UK GDPR") and the Data Protection Act 2018 ("DPA").

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On September 21, 2023, the UK Information Commissioner’s Office (“ICO”) published an opinion on the UK Government’s assessment of adequacy for the UK Extension to the EU-U.S. Data Privacy Framework (the “UK Extension”). The ICO provides that, while it is reasonable for the Secretary of State to conclude that the UK Extension provides an adequate level of data protection and lay regulations to that effect, there are four specific areas that could pose risks to UK data subjects if the protections identified are not properly applied. These four risks are: 

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On September 15, 2023, the Irish Data Protection Commission (the “DPC”) announced a fine of 345 million Euros against TikTok Technology Limited (“TikTok”) for non-compliance with GDPR rules regarding the processing of personal data of child users. This decision by the DPC reflects the binding decision of the European Data Protection Board (the “EDPB”) pursuant to Article 65 of the GDPR.

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On September 21, 2023, UK Secretary of State for Science, Innovation and Technology Michelle Donelan laid regulations in the UK Parliament, giving effect to a UK-U.S. Data Bridge. The regulations are supported by several documents, including a fact sheet and an “explainer.”  The regulations are due to take effect on October 12, 2023. U.S. companies approved to join the “UK Extension to the EU-US Data Privacy Framework” will be able to receive UK personal data under the new Data Bridge.

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On September 12, 2023, the UK Information Commissioner, John Edwards, and the Chief Executive of the National Cyber Security Centre (NCSC) of the UK, Lindy Cameron, signed a joint Memorandum of Understanding (MoU) that sets forth a framework for cooperation and information sharing between the ICO and the NCSC. The MoU states the general aims “are to codify and enhance working” between the ICO and NCSC so as to “assist them in discharging their functions.”

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On September 6, 2023, the European Commission designated six companies as gatekeepers under Article 3 of the Digital Markets Act (“DMA”). The new gatekeepers are Alphabet, Amazon, Apple, ByteDance, Meta and Microsoft. Jointly, these companies provide 22 core platform services, including social networks, internet browsers, operating systems and mobile app stores.

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On August 24, 2023, 12 data protection authorities published a joint statement calling for the protection of personal data from unlawful data scraping. The statement was issued by the authorities of Argentina, Australia, Canada, Colombia, Hong Kong, Jersey, Mexico, Morocco, New Zealand, Norway, Switzerland and the UK. The joint statement reminds organizations that personal data that is publicly accessible is still subject to data protection and privacy laws in most jurisdictions, and highlights the risks facing such data, including increased risk of social engineering or phishing attacks, identify fraud, and unwanted direct marketing or spam.

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Stephen Mathias from Kochhar & Co. reports that in early August 2023, the Indian Parliament passed the Digital Personal Data Protection Act (the “Act”), bringing to a close a 5-year process to enact an omnibus data privacy law in India. The Act was ratified by the President of India and will come into effect once notified by the Government. The Act significantly updates a previous draft, and departs substantially from the GDPR model of privacy laws.

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On August 9, 2023, India’s upper house (i.e., Rajya Sabha) passed the Digital Personal Data Protection Bill (“DPDPB”), two days after India’s lower house (i.e., Lok Sabha) passed the legislation. The DPDPB now heads to India President Droupadi Murmu for signature.

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On July 19, 2023, the European Data Protection Board (“EDPB”) issued an Information Note regarding data transfers to the U.S. following the adoption of an adequacy decision on the EU-U.S. Data Privacy Framework (the “Data Privacy Framework”) on July 10, 2023 (the “Information Note”).

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On July 14, 2023, the Norwegian Data Protection Authority (“DPA”) ordered Meta Platforms Ireland Limited and Facebook Norway AS (jointly, “Meta”) to temporarily cease the processing of personal data of data subjects in Norway for the purpose of targeting ads on the basis of “observed behavior,” when relying on either the contractual necessity legal basis (Article 6(1)b)) or the legitimate interests legal basis (Article 6(1)(f)) of the GDPR.

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Pablo A. Palazzi from Allende & Brea in Argentina reports that on June 30, 2023, the Argentine Executive Branch sent the new proposed Personal Data Protection Bill (the “Bill”) to the National Congress for consideration. The Bill was drafted by the Argentine Data Protection Authority (Agencia de Acceso a la Información Pública, or “AAIP”) and seeks to amend the current Personal Data Protection Act (Law No. 25,326 of 2000).

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On July 10, 2023, the European Commission formally adopted a new adequacy decision on the EU-U.S. Data Privacy Framework (the “Adequacy Decision”). The adoption of this Adequacy Decision follows years of intense negotiations between the EU and the U.S., after the invalidation of the EU-U.S. Privacy Shield by the Court of Justice of the European Union (“CJEU”) in the Schrems II case.

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On July 4, 2023, the European Commission proposed a new Regulation for additional procedural rules relating to the enforcement of the GDPR (the “GDPR Enforcement Regulation”). With the GDPR Enforcement Regulation, the European Commission aims to make the handling of cross-border data protection cases more efficient by harmonizing certain administrative procedures and elaborating existing rules on cooperation between EU Supervisory Authorities.

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On June 19, 2023, the UK Information Commissioner’s Office (“ICO”) recommended that organizations start using privacy enhancing technologies (“PETs”) to share personal information safely, securely and anonymously. The ICO also has issued new guidance on PETs which is aimed at those using large data sets in finance, healthcare, money laundering and cybercrime. The guidance contains information on how PETs can be used to help organizations with data protection compliance and technical detail on the different types of PETs currently available.

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On June 30, 2023, the European Data Protection Board (“EDPB”) published Recommendations 1/2022 on the Application for Approval and on the elements and principles to be found in Controller Binding Corporate Rules (Art. 47 GDPR) (the “Recommendations”), which were adopted on June 20, 2023. Binding corporate rules (“BCRs”) are a mechanism for transferring personal data to third countries in accordance with Chapter V of the EU General Data Protection Regulation (“GDPR”), and must be approved by the relevant organization’s lead supervisory authority. BCRs create enforceable rights and set out commitments in order to create, for the personal data transferred under the BCRs, a level of protection essentially equivalent to that provided by the GDPR.

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On July 3, 2023, U.S. Secretary of Commerce Gina Raimondo issued a statement confirming that the U.S. has fulfilled its commitments for implementing the EU-U.S. Data Privacy Framework (the “Framework”). In the statement, it was confirmed that the EU, Iceland, Liechtenstein and Norway, have been designated as “qualifying states” for purposes of implementing the redress mechanism established under Executive Order 14086, such designation to be become effective upon the adoption of an adequacy decision by the EU for the Framework. Further, according to the statement, the Office of the Director of National Intelligence has confirmed that the U.S. Intelligence Community has adopted its policies and procedures pursuant to Executive Order 14086.

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On June 27, 2023, the Council and the European Parliament reached a Political Agreement (“Political Agreement”) on the Proposal for a Regulation on harmonized rules on fair access to and use of data (the “Data Act”). The Data Act aims to “ensure fairness in the digital environment, stimulate a competitive data market, open opportunities for data-driven innovation and make data more accessible for all” and was initially proposed by the European Commission on February 23, 2022.

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On June 15, 2023, the UK Information Commissioner’s Office (“ICO”) called for businesses to address the privacy risks posed by generative artificial intelligence (“AI”) before “rushing to adopt the technology.” Stephen Almond, the ICO’s Executive Director of Regulatory Risk, said:  “Businesses are right to see the opportunity that generative AI offers . . . . But they must not be blind to the privacy risks.” An organization wishing to use AI should seek to understand at the outset how AI will use personal data, and mitigate any known risks. The ICO stated it is ...

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On June 14, 2023, the European Parliament (“EP”) approved its negotiating mandate (the “EP’s Position”) regarding the EU’s Proposal for a Regulation laying down harmonized rules on Artificial Intelligence (the “AI Act”). The vote in the EP means that EU institutions may now begin trilogue negotiations (the Council approved its negotiating mandate on December 2022). The final version of the AI Act is expected before the end of 2023.

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On June 7, 2023, the European Data Protection Board (“EDPB”) adopted the final version of its Guidelines on the calculation of administrative fines under the GDPR (the “Guidelines”). Through the Guidelines, the EDPB intends to harmonize the methodology used by supervisory authorities (“SA”) to calculate fines.

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On June 8, 2023, the United Kingdom and the United States announced they reached a commitment in principle to establish the UK Extension to the Data Privacy Framework, which will create a “data bridge” between the two countries. U.S. companies approved to join the framework would be able to receive UK personal data under the new data bridge.

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On May 30, 2023, the Cyberspace Administration of China (“CAC) issued the Guideline for Filing the Standard Contract for Cross-border Transfer of Personal Information (“SC”). On June 1, 2023, the SC became an effective mechanism for transferring personal data outside of China. When using the SC as a transfer mechanism, it must be filed with the CAC and the new Guideline provides guidance for doing so. The key elements of the Guideline are summarized below.

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On June 8, 2023, the UK Information Commissioner’s Office (“ICO”) published a new report on neurotechnology. Neurotechnology is technology used to monitor neurodata, the information coming directly from the brain and nervous system. In its press release on the report, the ICO warns that “that newly emerging neurotechnologies risk discriminating against people if those groups are not put at the heart of their development” and predicts the use of such technologies to become “widespread over the next decade.”

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On May 25, 2023, the European Data Protection Board (“EDPB”) elected Anu Talus, head of the Finish data protection authority, as its new Chair, replacing Andrea Jelinek. The EDPB also elected Irene Loizidou Nikolaidou, head of the Cypriot data protection authority, as one of its Deputy Chairs, replacing Ventsislav Karadjov.

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On May 24, 2023, the UK Information Commissioner’s Office (“ICO”) announced it published new guidance for businesses and employers on responding to subject access requests (“SARs”). The right of access, commonly referred to as a subject access request, gives someone the right to request a copy of their personal information from organizations. The ICO received over 15,000 complaints related to SARs during April 2022 and March 2023.

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On May 23, 2023, the UK Information Commissioner, John Edwards, delivered the opening remarks at the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (“LIBE”). The Commissioner opened his speech by stating his “principal reason” for being present was to provide “reassurance” that he takes his “responsibility of protecting Europeans data in the United Kingdom very seriously” and “will continue to do so through the process of law reform, and beyond.” The Commissioner went on to discuss several points, including the following:

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On May 22, 2023, the Irish Data Protection Commission (the “DPC”) announced a €1.2 billion fine against Meta Ireland for unlawfully transferring personal data to the U.S.

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On May 17, 2023, the European Data Protection Board (EDPB) adopted the final version of its Guidelines on facial recognition technologies in the area of law enforcement (the “Guidelines”). The Guidelines address lawmakers at the EU and EU Member State level, and law enforcement authorities and their officers implementing and using facial recognition technology. 

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On May 16, 2023, the French Data Protection Authority (the “CNIL”) announced its action plan on artificial intelligence (the “AI Action Plan”). The AI Action Plan builds on prior work of the CNIL in the field of AI and consists of a series of activities the CNIL will undertake to support the deployment of AI systems that respect the privacy of individuals.

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On May 11, 2023, at a plenary session, the European Parliament voted to adopt a resolution on the adequacy of the protection afforded by the EU-U.S. Data Privacy Framework (the “Framework”) which calls on the European Commission (the “Commission”) to continue negotiations with its U.S. counterparts with the aim of creating a mechanism that would ensure equivalence and provide the adequate level of protection required by EU data protection law.  The text was adopted with 306 votes in favor, 27 against and 231 abstaining. This resolution follows the draft motion (summary available here) which was published in February 2023 and urged the Commission not to adopt adequacy based on the Framework.

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On May 4, 2023, the Court of Justice of the European Union (“CJEU”) issued a judgment in the Österreichische Post case (C-300/21). In the decision, the CJEU clarified that a mere infringement of the EU General Data Protection Regulation (“GDPR”) is not sufficient to give data subjects the right to receive compensation under Article 82 of the GDPR. Article 82 provides that any person who has suffered material or non-material damage as a result of an infringement of this Regulation shall have the right to receive compensation from the controller or processor for the damage suffered.”

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On March 22, 2023, Capita PLC (“Capita”) experienced a cyber incident which it announced in a press release on April 3, 2023 and an update on April 20, 2023. Capita identified the incident on March 31, 2023, and confirmed the incident caused disruption to some services provided to individual clients, which has now been resolved. On April 21, 2023, the UK Information Commissioner’s Office (“ICO”) issued a statement confirming that Capita reported the incident and the ICO is investigating. The ICO also noted that other organizations affected by the incident should “consider their position[s]” and, if necessary, submit a breach notification.

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On April 26, 2023, the European Data Protection Board (“EDPB”) initiated the procedure for electing a new Chair and Deputy Chair to replace Andrea Jelinek and Ventsislav Karadjov, whose mandates will end on May 25, 2023.

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On April 4, 2023, the data protection regulator of the UK, the Information Commissioner’s Office (ICO), issued a fine of a £12.7 million to TikTok Information Technologies UK Limited and TikTok Inc (together, “TikTok”) for a number of breaches of UK data protection law, including failing to use children’s personal data lawfully. 

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On March 28, 2023, the French Data Protection Authority (the “CNIL” or “French DPA”) announced a €125,000 fine on the e-scooter rental company Cityscoot for breaching EU and French data protection rules, in particular in the context of geolocation and use of Google reCAPTCHA. The fine was imposed on March 16, 2023.

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On March 29, 2023, the UK government published a white paper on artificial intelligence (“AI”) entitled “A pro-innovation approach to AI regulation.” The white paper sets out a new “flexible” approach to regulating artificial intelligence which is intended to build public trust in AI and make it easier for businesses to grow and create jobs. 

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The Brazilian law firm BMA Advogados reports that the Brazilian National Data Protection Authority (“ANPD”) adopted a landmark and long-awaited regulation for the enforcement of the Brazilian General Data Protection Law (“LGPD”).

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On March 15, 2023, the UK Information Commissioner’s Office (“ICO”) published an updated version of its guidance on AI and data protection (the “updated guidance”), following requests from UK industry to clarify requirements for fairness in AI. 

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This is an excerpt from Centre for Information Policy Leadership (“CIPL”) President Bojana Bellamy’s recently published piece in the IAPP “Privacy Perspectives” blog, and are the views of the author.

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On March 8, 2023, the UK Secretary of State for Science, Innovation and Technology, Michelle Donelan, introduced the Data Protection and Digital Information (No. 2) Bill to UK Parliament. The first version of the reform bill was originally proposed by the UK government in July 2022, but was put on pause during September 2022. 

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On March 7, 2023, the Irish Data Protection Commission (“DPC”) published its Annual Report for 2022 (the “Report”). The Report contains details on several areas of the DPC’s work, including complaints from data subjects received by the DPC, personal data breach notifications received by the DPC and statutory inquiries conducted by the DPC.

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On February 28, 2023, the European Data Protection Board (“EDPB”) issued its Opinion 5/2023 on the European Commission Draft Implementing Decision on the adequate protection of personal data under the EU-US Data Privacy Framework (the “Opinion”). In the Opinion, the EDPB recognized substantial improvements in the proposed EU-U.S. Data Privacy Framework (“DPF”) when compared to Privacy Shield, whilst also stating that a number of aspects of the DPF need to be clarified, developed or further detailed.

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On February 24, 2023, following public consultation, the European Data Protection Board (EDPB) published the following three sets of adopted guidelines:

  1. Guidelines on the Interplay between the application of Article 3 and the provisions on international transfers as per Chapter V GDPR (05/2021) (final version);
  2. Guidelines on certification as a tool for transfers (07/2022) (final version); and
  3. Guidelines on deceptive design patterns in social media platform interfaces (03/2022) (final version).
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On February 20, 2023, in the case of Experian Limited v The Information Commissioner, the First-Tier Tribunal in the UK (the “Tribunal”) ruled on the ICO’s action to require Experian to make changes to how it processes personal data for direct marketing purposes. While the Tribunal supported the ICO in certain respects, it largely ruled in favor of Experian and issued a Substituted Decision Notice, as detailed further below.

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On February 14, 2023, in a Draft Motion for a Resolution on the adequacy of the protection afforded by the proposed EU-U.S. Data Privacy Framework (the “Framework”), the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (the “Committee”) urged the European Commission not to adopt adequacy based on the Framework, on the basis that it “fails to create actual equivalence” with the EU in the level of data protection that it provides.

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On February 9, 2023, the Court of Justice of the European Union (“CJEU”) issued its judgment in the X-FAB Dresden case (C-453/21). In this decision, the CJEU clarified the criteria for assessing whether a conflict of interest exists between the Data Protection Officer (“DPO”) position, and other tasks or duties assigned to the DPO.

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