Posts tagged Data Controller.
Time 8 Minute Read

The Maryland legislature recently passed the Maryland Online Data Privacy Act of 2024 (“MODPA”), which was delivered to Governor Wes Moore for signature and, if enacted, will impose robust requirements with respect to data minimization, the protection of sensitive data, and the processing and sale of minors’ data.

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On March 27, 2024, the Kentucky legislature passed a comprehensive data privacy bill, which was delivered to the Governor for signature.  If H.B. 15 is enacted, Kentucky will join the growing list of states with comprehensive data privacy laws. 

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On March 6, 2024, Governor Chris Sununu signed into law SB 255, making New Hampshire the 15th state with a comprehensive privacy law.

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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 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 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 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 June 30, 2023, the Delaware House of Representatives passed the Delaware Personal Data Privacy Act (H.B. 154) (the “DPDPA”), a day after the Delaware Senate passed the legislation. The DPDPA heads to Governor John Carney for a final signature. This could make Delaware the 13th U.S. state to enact comprehensive privacy legislation.

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On June 22, 2023, the Oregon House of Representatives passed the Oregon Consumer Privacy Act (S.B. 619) (the “OCPA”), which was previously passed by the Oregon Senate on June 20, 2023. The OCPA has been sent to the Oregon governor’s desk for signature. If signed, the OCPA would make Oregon the 12th state to have enacted comprehensive privacy legislation.

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On April 27, 2023, Washington adopted the My Health My Data Act (“WMHMDA”). Most of the law’s provisions are not effective until March 31, 2024 (or June 30, 2024 for small businesses). The law’s geofencing prohibition, however, is set to take effect on July 23, 2023. The prohibition is part of stringent requirements that Washington added when it became the first state to enact a comprehensive consumer health information privacy law in the United States.

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On May 10, 2023, the Texas Senate passed H.B. 4, also known as the Texas Data Privacy and Security Act (“TDPSA”). The TDPSA now heads to a conference committee between the Texas Senate and House to rectify the differences between the Senate and House versions. If the TDPSA is signed into law, Texas could become the tenth state to enact comprehensive privacy legislation.

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On April 21, 2023, the Montana and Tennessee legislatures voted to enact comprehensive consumer privacy bills in their respective states. If signed by their governors, Montana’s Consumer Data Privacy Act (S.B. 384) (“MCDPA”) and Tennessee’s Information Protection Act (H.B. 1181) (“TIPA”) could make these states the eighth and ninth U.S. states to enact comprehensive privacy legislation.

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On April 27, 2023, Washington State Governor Jay Inslee signed the My Health My Data Act into law, making Washington the first state to establish a comprehensive health data privacy law in the United States.

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On April 13, 2023, the Indiana Senate concurred to the Indiana House’s amendments of Senate Bill 5 (“SB 5”) a day after the House returned the bill to the Senate with amendments, and a couple days after the Indiana House unanimously voted to approve SB 5. SB 5 now will head to Governor Eric Holcomb for a final signature, where he will have seven days upon transmission to sign SB 5 into law or veto it. This could make Indiana the seventh U.S. state to enact comprehensive privacy legislation.

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On January 10, 2023, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth  responded to a call for public comments from the European Data Protection Board (“EDPB”) regarding their 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) (“Recommendations 1/2022”). The Recommendations 1/2022 are intended to bring existing Controller Binding Corporate Rules (“BCR-C”) in line with the GDPR and the Schrems II ruling.

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Kochhar & Co. reports that, on November 18, 2022, the Government of India (“Government”) released the long-awaited fourth draft of India’s proposed privacy law, now renamed the Digital Personal Data Protection Bill.

Terms and Application

The draft law uses terminology similar to past versions: the data controller is called the “data fiduciary,” the data subject is called the “data principal,” and personal information is referred to as “personal data.” There is no separate category of sensitive personal data.   

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SHIFT Counsellors at Law reports from Indonesia that The People’s Representative Council of the Republic of Indonesia has ratified Indonesia’s draft law on personal data protection. The draft law came into effect on October 17, 2022. The law, which is partly modeled on the EU General Data Protection Regulation, is Indonesia’s first “umbrella regulation” on personal data protection. The law will provide certain protections to Indonesian citizens’ data, and provide more legal certainty to parties processing such data.

Read SHIFT Counsellors’ article on the ...

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On September 21, 2022, Denmark’s data protection authority Datatilsynet (“Danish DPA”) announced its guidance that Google Analytics, Google’s audience measurement tool, is not compliant with the EU General Data Protection Regulation (“GDPR”), as the tool transfers personal data to the United States which, following Schrems II, does not offer an adequate level of data protection.

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On June 23, 2022, Italy’s data protection authority (the “Garante”) determined that a website’s use of the audience measurement tool Google Analytics is not compliant with the EU General Data Protection Regulation (“GDPR”), as the tool transfers personal data to the United States, which does not offer an adequate level of data protection. In making this determination, the Garante joins other EU data protection authorities, including the French and Austrian regulators, that also have found use of the tool to be unlawful.

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On May 12, 2022, the European Data Protection Board (“EDPB”) adopted Guidelines 04/2022 on the calculation of administrative fines under the EU General Data Protection Regulation (“GDPR”) (the “Guidelines”). The Guidelines are intended  to harmonize the methodology supervisory authorities (“SAs”) use when calculating the amount of a GDPR fine and provide illustrative examples to help organizations understand the calculation method.

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On June 1, 2022, Thailand’s Personal Data Protection Act (“PDPA”) entered into force after three years of delays. The PDPA, originally enacted in May 2019, provides for a one-year grace period, with the main operative provisions of the law originally set to come into force in 2020. Due to the COVID-19 pandemic, however, the Thai government issued royal decrees to extend the compliance deadline to June 1, 2022. 

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On May 10, 2022, Connecticut Governor Ned Lamont signed An Act Concerning Personal Data Privacy and Online Monitoring, after the law was previously passed by the Connecticut General Assembly in April. Connecticut is now the fifth state to enact a consumer privacy law.

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On March 24, 2022, Utah became the fourth state in the U.S., following California, Virginia and Colorado, to enact a consumer data privacy law, the Utah Consumer Privacy Act (the “UCPA”). The UCPA resembles Virginia’s Consumer Data Protection Act (“VCDPA”) and Colorado’s Consumer Privacy Act (“CPA”), and, to a lesser extent, the California Consumer Privacy Act (as amended by the California Privacy Rights Act) (“CCPA/CPRA”). The UCPA will take effect on December 31, 2023.

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On February 22, 2022, the European Data Protection Board (the “EDPB”) adopted its final Guidelines 04/2021 on Codes of Conduct as tools for transfers (the “Guidelines”), following a public consultation that took place in 2021.

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On February 15, 2022, the French Data Protection Authority (the “CNIL”) published its enforcement priority topics for 2022. Each year, the CNIL conducts numerous investigations in response to complaints, data breach notifications and ongoing events, or based on previously established enforcement priorities.

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On January 12, 2022, the French Data Protection Authority (the “CNIL”) published guidelines on the re-use of personal data by data processors for their own purposes (such as product improvement or the development of new products and services) under the EU General Data Protection Regulation (“GDPR”) (the “Guidelines”). This post outlines key takeaways from the Guidelines.

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On January 5, 2022, the European Data Protection Supervisor (“EDPS”) issued a decision against the European Parliament (“EP”). The case resulted from a complaint submitted by certain Members of the European Parliament (“MEPs”) who alleged that the Parliament’s use of cookies violated data protection law, including requirements regarding the transfer of personal data outside of the EU. The EDPS is responsible for overseeing compliance of data protection rules by the EU institutions.

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On November 19, 2021, the European Data Protection Board (“EDPB”) published its draft Guidelines 05/2021 (the “Guidelines”) on the interplay between the application of Article 3 of the EU General Data Protection Regulation (“GDPR”), which sets forth the GDPR’s territorial scope, and the GDPR’s provisions on international data transfers. The Guidelines aim to assist organizations subject to the GDPR in identifying whether a data processing activity constitutes an international data transfer under the GDPR, as the GDPR does not define the term.

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On November 5, 2021, IAB Europe (“IAB EU”) announced that, in the coming weeks, the Belgian Data Protection Authority plans to share with other data protection authorities a draft ruling on the IAB EU Transparency & Consent Framework (“TCF”). The TCF is a GDPR consent solution built by IAB EU that has become a widely used approach to collecting consent to cookies under the GDPR. The draft ruling is expected to find that the TCF does not comply with the GDPR, in part because IAB EU acts as a controller, and the digital signals the TCF creates to capture individuals’ consent to cookies are personal data under the GDPR. Because IAB EU does not consider itself a controller with respect to the TCF, it does not currently comply with the GDPR’s controller obligations.

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On November 10, 2021, the UK Supreme Court issued its long-awaited judgment in the Lloyd v Google case. The decision is expected to make it difficult in practice for a future class action lawsuit that is brought on behalf of a class of individuals who have not actively opted in to being represented by the lead claimant to proceed under UK law.

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On September 10, 2021, the UK Government Department for Digital, Culture, Media & Sport (“DCMS”) launched a consultation on its proposed reforms to the UK data protection regime. The consultation reflects DCMS’s effort to deliver on Mission 2 of the National Data Strategy, which is “to secure a pro-growth and trusted data regime in the UK.” Organizations are encouraged to provide input on a range of data protection proposals, some of which are outlined below. The consultation will close on November 19, 2021, and the Centre for Information Policy Leadership (“CIPL”) will consult with members to prepare a formal response to the consultation.

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Laura Liguori of Portolano Cavallo reports that on June 10, 2021, the Italian Data Protection Authority (Garante or “DPA”) adopted a new version of its guidelines for cookies and other tracking mechanisms (the “Guidelines”).

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On July 22, 2021, the Dutch Data Protection Authority (“Dutch DPA”) announced that it had imposed a €750,000 fine on TikTok for violating the privacy of young children namely for the company’s alleged lack of transparency.

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On July 8, 2021, Colorado Governor Jared Polis signed SB21-190, the Colorado Privacy Act (“the Act”), into law, making Colorado the third state to have a comprehensive data privacy law on the books, following California and Virginia. The Colorado House voted 57-7 in favor of the Act on June 7 after it had previously passed the Senate unanimously on May 26. The Senate voted unanimously to adopt the House’s amendments to the Act on June 8. The Act will go into effect on July 1, 2023, with some specific provisions going into effect at later dates.

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On June 21, 2021, following a public consultation, the European Data Protection Board (“EDPB”) published the final version of its recommendations on supplementary measures in the context of international transfer safeguards, such as Standard Contractual Clauses (“SCCs”) (the “Recommendations”).

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On June 15, 2021, the Court of Justice of the European Union (the “CJEU”) released its judgment in case C-645/19 of Facebook Ireland Limited, Facebook Inc., Facebook Belgium BVBA v. the Belgian Data Protection Authority (“Belgian DPA”). We previously reported on the background of the case and the Advocate General’s opinion.

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On June 4, 2021, the European Commission published the final version of the implementing decision on standard contractual clauses for transfers of personal data to third countries under the EU General Data Protection Regulation (“GDPR”), as well as the final version of the new standard contractual clauses (the “SCCs”). The European Commission had previously published draft versions of the implementing decision and the SCCs in November 2020.

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On May 27, 2021, the European Data Protection Supervisor (the “EDPS”) announced that it has opened two investigations regarding (1) the use of cloud services provided by Amazon Web Services and Microsoft under Cloud II contracts by European Union institutions, bodies and agencies; and (2) the use of Microsoft Office 365 by the European Commission.

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On April 23, 2021, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted its response to the European Data Protection Board (“EDPB”) consultation on draft guidelines on virtual voice assistants (the “Guidelines”). The Guidelines were adopted on March 12, 2021 for public consultation.

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On March 15, 2021, the state Data Protection Authority of Bavaria (“Bavarian DPA”) declared the use of U.S. e-mail marketing service Mailchimp by a fashion magazine (acting as controller) in Bavaria impermissible due to non-compliance with Schrems II mitigation steps in relation to the transfer of e-mail addresses to Mailchimp in the U.S.

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On March 12, 2021, the European Data Protection Board (“EDPB”) published its Guidelines 01/2021 on Virtual Voice Assistants for consultation (the “Guidelines”). Virtual voice assistants (“VVAs”) understand and execute voice commands or coordinate with other IT systems. These tools are available on most smartphones and other devices and collect significant amounts of personal data, such as through user commands. In addition, VVAs require a terminal device equipped with a microphone and transfer data to remote service. These activities raise compliance issues under both the General Data Protection Regulation (“GDPR”) and the e-Privacy Directive.

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On March 2, 2021, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted its response to the European Data Protection Board (“EDPB”) consultation on draft guidelines on examples regarding data breach notification (the “Guidelines”). The Guidelines were adopted on January 14, 2021 for public consultation.

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The concept of regulatory sandboxes has gained traction in the data protection community. Since the UK Information Commissioner’s Office (the “ICO”) completed its pilot program of regulatory sandboxes in September 2020, two European Data Protection Authorities (“DPAs”) have created their own sandbox initiatives following the ICO’s framework.

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On February 5, 2020, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted a response to the European Commission’s (the “Commission’s”) public consultation on the Commission’s Proposal for a Regulation on European Data Governance (the “Data Governance Act,” or “DGA”). This proposal is the first set of initiatives announced under the broader European Data Strategy.

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On January 27, 2021, the French Data Protection Authority (the “CNIL”) announced (in French) that it imposed a fine of €150,000 on a data controller, and a fine of €75,000 on its data processor, for failure to implement adequate security measures to protect customers’ personal data against credential stuffing attacks on the website of the data controller. The CNIL decided not to make its decisions public, thereby not disclosing the name of the companies sanctioned.

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On January 26, 2021, BBB National Programs announced that it has been endorsed as an Accountability Agent for the APEC Cross-Border Privacy Rules (“CBPR”) and Privacy Recognition for Processors (“PRP”) systems. This makes BBB National Programs the seventh CBPR and PRP Accountability Agent worldwide and the first ever U.S. non-profit to be approved by APEC.

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The recent UK case of Soriano v Forensic News and Others tested the territorial reach of the General Data Protection Regulation (“GDPR”) and represents the first UK judgment dealing with the territorial scope of the GDPR. This was a “service out” case, where the claimant, Walter T. Soriano, sought the Court’s permission under the UK Civil Procedure Rules to serve proceedings on the defendants, who were all domiciled in the U.S.

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On January 18, 2021, the European Data Protection Board (“EDPB”) released draft Guidelines 01/2021 on Examples regarding Data Breach Notification (the “Guidelines”). The Guidelines complement the initial Guidelines on personal data breach notification under the EU General Data Protection Regulation (“GDPR”) adopted by the Article 29 Working Party in February 2018. The new draft Guidelines take into account supervisory authorities’ common experiences with data breaches since the GDPR became applicable in May 2018. The EDPB’s aim is to assist data controllers in deciding how to handle data breaches, including by identifying the factors that they must take into account when conducting risk assessments to determine whether a breach must be reported to relevant supervisory authorities and/or the affected data subjects.

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On January 15, 2021, the European Data Protection Board (“EDPB”) and European Data Protection Supervisor (“EDPS”) adopted joint opinions on the draft Standard Contractual Clauses (“SCCs”) released by the European Commission in November 2020, for both international transfers (“International SCCs”) and controller-processor relationships within the EEA (“EEA Controller-Processor SCCs”). 

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On November 23, 2020, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted its response to the European Data Protection Board (“EDPB”) consultation on draft guidelines on relevant and reasoned objections under the General Data Protection Regulation (“GDPR”) cooperation and consistency mechanisms (the “Guidelines). The consultation on the Guidelines took place a few weeks before the EDPB issued its first binding decision under the Article 65 GDPR dispute resolution mechanism.

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On December 21, 2020, the European Data Protection Board (the “EDPB”) released its 2021-2023 Strategy (the “Strategy”). The Strategy aims at setting out the four main pillars of the EDPB strategic objectives through 2023 and key actions to help achieve those objectives:

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On December 17, 2020, the UK Information Commissioner’s Office (“ICO”) published its Data Sharing Code of Practice (the “Code”), in accordance with its obligation to do so under the Data Protection Act 2018 (the “DPA”).

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On December 15, 2020, the Irish Data Protection Commission (“DPC”) announced its fine of €450,000 against Twitter International Company (“Twitter”), following its investigation into a breach resulting from a bug in Twitter’s design. The fine is the largest issued by the Irish DPC under the EU General Data Protection Regulation (“GDPR”) to date and is also its first against a U.S.-based organization.

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On December 10, 2020, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted its response to the European Commission’s invitation for comments on its draft implementing decision on standard contractual clauses (“SCCs”) to be used for the transfer of personal data from a controller or processor subject to the EU General Data Protection Regulation (“GDPR”) (i.e., a data exporter) to a controller or (sub-)processor not subject to the GDPR (i.e., a data importer).

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On December 10, 2020, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted its response to the European Commission’s invitation for comments on its draft implementing decision on standard contractual clauses (“SCCs”) between controllers and processors for purposes of Article 28 of the EU General Data Protection Regulation (the “GDPR”). Article 28 of the GDPR sets out specific provisions that must be executed between data controllers and processors when personal data is shared.

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On December 10, 2020, the French Data Protection Authority (the “CNIL”) announced that it has levied fines of €60 million on Google LLC and €40 million on Google Ireland Limited under the French cookie rules for their alleged failure to (1) obtain the consent of users of the French version of Google's search engine (google.fr) before setting advertising cookies on their devices; (2) provide users with adequate information about the use of cookies; and (3) implement a fully effective opt-out mechanism to enable users to refuse cookies. On the same date, the CNIL announced that it has levied a fine of €35 million on Amazon Europe Core under the same rules for its alleged failure to (1) obtain the consent of users of the amazon.fr site before setting advertising cookies on their devices; and (2) provide adequate information about the use of cookies.

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On November 26, 2020, the Belgian Data Protection Authority (“Belgian DPA”) signed a cooperation agreement with DNS Belgium, the organization managing the “.be” country code top-level domain name. The purpose of the cooperation agreement is to allow DNS Belgium to suspend “.be” websites that are linked to infringements of the EU General Data Protection Regulation (the “GDPR”).

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On November 25, 2020, the European Commission published its Proposal for a Regulation on European Data Governance (the “Data Governance Act”). The Data Governance Act is part of a set of measures announced in the 2020 European Strategy for Data, which is aimed at putting the EU at the forefront of the data empowered society. The European Commission also released a Questions & Answers document and a Factsheet on European data governance.

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On November 26, 2020, the Conference of the German Data Protection Authorities (Datenschutzkonferenz, the “DSK”) issued a press release with conclusions from their 100th anniversary meeting.

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On November 26, 2020, the French Data Protection Authority (the “CNIL”) announced that it imposed a fine of €2.25 million on Carrefour France and a fine of €800,000 on Carrefour Banque for various violations of the EU General Data Protection Regulation (“GDPR”) and Article 82 of the French Data Protection Act governing the use of cookies.

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On November 12, 2020, the European Commission published a draft implementing decision on standard contractual clauses for the transfer of personal data to third countries pursuant to the EU General Data Protection Regulation (“GDPR”), along with its draft set of new standard contractual clauses (the “SCCs”).

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On November 11, 2020, the European Data Protection Board (the “EDPB”) published its long-awaited recommendations following the Schrems II judgement regarding supplementary measures in the context of international transfer safeguards such as Standard Contractual Clauses (“SCCs”) (the “Recommendations”). In addition, the EDPB published recommendations on the European Essential Guarantees for surveillance measures (the “EEG Recommendations”), which complement the Recommendations. The Recommendations are subject to a public consultation, which closes on December 21, 2020.

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On September 7, 2020, the European Data Protection Board (the “EDPB”) published Guidelines on the Targeting of Social Media Users (the “Guidelines”). The Guidelines aim to provide practical guidance on the role and responsibilities of social media providers and those using targeting services, such as for targeted advertising, on social media platforms (“targeters”).

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On September 7, 2020, the European Data Protection Board (“EDPB”) released draft Guidelines 07/2020 on the concepts of controller and processor in the EU General Data Protection Regulation (“GDPR”) (the “Guidelines”). The Guidelines aim to (1) clarify the concepts of controller, joint controllers, processor, third party and recipient under the GDPR by providing concrete examples with respect to each; and (2) specify the consequences attached to the different roles of controller, joint controllers and processor. The Guidelines replace the previous opinion of the Article 29 Working Party on these concepts.

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On August 24, 2020, the Data Protection Authority (“DPA”) of the German federal state of Baden-Württemberg issued guidance on international data transfers following the judgment of the Court of Justice of the European Union (“CJEU”) in the Schrems II case (decision C-311/18 of July 16, 2020). As we previously reported, the judgment of the CJEU invalidated the EU-U.S. Privacy Shield framework and confirmed the ongoing validity of the controller-to-processor EU Standard Contractual Clauses (“SCCs”), subject to an adequacy assessment and, if necessary, additional safeguards to protect the personal data transferred pursuant to the SCCs. The guidance is notable because it is the first substantive guidance from a DPA following the Schrems II judgment (although the guidance is only applicable to companies established in the federal state of Baden-Württemberg).

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On July 30, 2020, the Litigation Chamber of the Belgian Data Protection Authority (the “Belgian DPA”) imposed a €20,000 fine on Belgian telecommunications provider Proximus N.V. (“Proximus”) for several data protection infringements related to Proximus’ public directory. In particular, the claimant requested that Proximus remove his contact details from the public directory and inform other publishers of public directories not to publish his personal data. Despite informing the claimant that it was going to proceed accordingly, Proximus still published his personal data in its public directory and shared it with other publishers of public directories.

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On July 6, 2020, the Dutch Data Protection Authority (Autoriteit Persoonsgegevens, the “Dutch DPA”) imposed a €830,000 fine on the Dutch Credit Registration Bureau (Stichting Bureau Krediet Registration, “BKR”) for non-compliance with Articles 12(2) and 12(5) of the EU General Data Protection Regulation (the “GDPR”) between May 2018 and March 2019.

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On July 14, 2020, the Litigation Chamber of the Belgian Data Protection Authority (the “Belgian DPA”) imposed a €600,000 fine on Google Belgium SA (“Google”) for non-compliance with the right to be forgotten.

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On July 8, 2020, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted its White Paper (the “Paper”) as input for the European Data Protection Board’s (the “EDPB”) future guidelines on data subject rights (“DSRs”) (the “Guidelines”). The Paper, titled “Data Subject Rights under the GDPR in a Global Data Driven and Connected World,” was drafted following the EDPB stakeholders’ event on DSR in Brussels on November 4, 2019.

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On June 16, 2020, the Litigation Chamber of the Belgian Data Protection Authority (the “Belgian DPA”) imposed a fine on a company (the “defendant”) for unlawful and incorrect processing of personal data and non-compliance with the EU General Data Protection Regulation’s (the “GDPR”) data subject rights provisions.

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On July 1, 2020, the Dubai International Financial Centre (“DIFC”) Data Protection Law No. 5 of 2020 came into effect (“New DP Law”). Due to the current pandemic, a three-month grace period, running until October 1, 2020, has been provided for companies to comply. The New DP Law replaces DIFC Law No. 1 of 2007. The release of the New DP Law is, in part, an effort to ensure that the DIFC, a financial hub for the Middle East, Africa and South Asia, meets the standard of data protection required to receive an “adequacy” finding from the European Commission and the United Kingdom, meaning that companies may transfer EU/UK personal data to the DIFC without putting in place a transfer mechanism (such as Standard Contractual Clauses).

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On June 19, 2020, France’s Highest Administrative Court (the “Conseil d’Etat”) issued a decision partially annulling the guidelines of the French Data Protection Authority (the “CNIL”) on cookies and similar technologies (the “Guidelines”). The Conseil d’Etat annulled the provision of the Guidelines imposing a general and absolute ban on ‘cookie walls’ that prevent users who do not consent to the use of cookies from accessing a site or mobile app. However, the Conseil d’Etat upheld the main part of the Guidelines. On the day of the Conseil d’Etat’s decision, the CNIL published a statement (the “Statement”) announcing that they took note of the decision and will strictly comply with it.

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On June 2, 2020, the European Data Protection Board (the “EDPB”) announced that it had released a statement on restrictions on data subject rights in connection with the state of emergency in EU Member States amid the COVID-19 pandemic (the “Statement”).

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On May 25 and May 26, 2020 respectively, the Belgian Data Protection Authority (the “Belgian DPA”) published two opinions on draft laws introducing COVID-19-related tracking initiatives: (1) the Opinion 42/2020 on the draft law for the creation of a database by Sciensano, a public health institution (“Opinion 42/2020”), and (2) the Opinion 43/2020 on the draft law for the use of contact tracing apps to fight the spread of COVID-19 (“Opinion 43/2020”).

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The implementation of Thailand’s Personal Data Protection Act B.E. 2562 (A.D. 2019) (the “PDPA”) has been delayed until May 31, 2021.

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On May 19, 2020, the Belgian Data Protection Authority (the “Belgian DPA”) announced that the Litigation Chamber had imposed a €50,000 fine on a social media provider for unlawful processing of personal data in connection with the “invite-a-friend” function offered on its platform.

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Pakistan’s Ministry of Information Technology and Telecommunication recently introduced a new draft of Pakistan’s Personal Data Protection Bill, 2020 (the “Bill”) and launched a public consultation regarding the same. The public consultation period will end on May 15, 2020. The Bill, which applies to “any person who processes” or “has control over or authorizes the processing of” any personal data, if the data subject, the controller or processor are located in Pakistan, would establish certain requirements and restrictions related to the processing of personal data, as well as penalties for violating the law. In addition, under the Bill, the federal government would, within six months of coming into force, establish a Personal Data Protection Authority of Pakistan with rulemaking authority to enforce the act.

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On April 30, 2020, the French Data Protection Authority (the “CNIL”) published guidance on the extraction of web users’ personal data from online public spaces by web scraping tools and re-use of such data for direct marketing (the “Guidance”). The Guidance was issued following inspections carried out by the CNIL in 2019.

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On April 9, 2020, the Belgian Data Protection Authority (the “Belgian DPA”) released guidance and a set of frequently asked questions (“FAQs”) regarding the use of cookies and other tracking technologies.

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On April 6, 2020, the Irish Data Protection Commission (the “DPC”) published a report summarizing the DPC’s findings following a cookie sweep of select websites across a range of sectors, as well as a new guidance note on the use of cookies and other tracking technologies.

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The UK Information Commissioner’s Office (“ICO”) has published guidance regarding its expectations for controllers and health professionals during the COVID-19 outbreak.

In its guidance for controllers, the ICO adopted a pragmatic stance, stating: “We know you might need to share information quickly or adapt the way you work. Data protection will not stop you doing that. It’s about being proportionate - if something feels excessive from the public’s point of view, then it probably is.”

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On February 10, 2020, the Belgian Data Protection Authority (the “Belgian DPA”) published its Recommendation 1/2020 on data processing activities for direct marketing purposes (the “Recommendation”). With this Recommendation, the Belgian DPA aims to clarify the complex rules relating to the processing of personal data for direct marketing purposes, including by providing practical examples and guidelines to the different stakeholders involved in direct marketing activities. Direct marketing is one of the Belgian DPA’s top priorities for the next few years, as indicated in its 2019-2025 Strategic Plan.

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On January 14, 2020, the French Data Protection Authority (the “CNIL”) published its draft recommendations on the practical modalities for obtaining users’ consent to store or read non-essential cookies and similar technologies on their devices (the “Recommendations”). The CNIL also published a set of questions and answers on the Recommendations (“FAQs”).

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At its 15th plenary meeting, the European Data Protection Board (“EDPB”) adopted the final guidelines on the territorial scope of the EU General Data Protection Regulation (“GDPR”) (the “Guidelines”), taking into account the feedback it received during the public consultation of its draft guidelines published on November 23, 2018.

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On November 13, 2019, the European Data Protection Board (“EDPB”) published its draft guidelines 4/2019 (the “Guidelines”) on the obligation of Data Protection by Design and by Default (“DPbDD”) set out under Article 25 of the EU General Data Protection Regulation (“GDPR”).

Time 4 Minute Read

On October 22, 2019, the drafting group of China’s National Information Security Standardization Technology Committee (“NISSTC”) released a third set of draft amendments to the Information Security Technology - Personal Information Security Specification (GB/T 35273 – 2017) (the “Updated Draft Specification”). The original Specification, first issued on December 29, 2017, became effective May 1, 2018, and saw earlier draft amendments on February 1, 2019 and June 25, 2019. The NISSTC received more than 400 public comments on the proposed June amendments. The latest draft amendment was issued without a public comment period.

Time 2 Minute Read

On September 10, 2019, the French data protection authority (the “CNIL”) updated its existing set of questions and answers (“FAQs”) on the impact of a no-deal Brexit on data transfers from the EU to the UK and how controllers should prepare.

Time 2 Minute Read

On September 6, 2019, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth LLP submitted formal comments to the European Data Protection Board (the “EDPB”) on its draft guidelines on processing of personal data through video devices (the “Guidelines”). The Guidelines were adopted on July 10, 2019, for public consultation.

Time 2 Minute Read

The Cayman Islands Data Protection Law, 2017 (“DPL”), which was published in June 2017, will go into force on September 30, 2019. The DPL includes requirements for the protection of personal data and is centered upon eight data protection principles. According to the newly minted Cayman Islands data protection authority, the DPL aligns the Cayman Islands with other major jurisdictions around the world. It includes many concepts that exist in other comprehensive data protection laws, such as the EU General Data Protection Regulation. For example, the DPL includes personal data processing limitations, individual data subject rights, data breach notification obligations and cross-border transfer restrictions.

Time 2 Minute Read

On August 21, 2019, the Belgian Data Protection Authority (the “Belgian DPA”) published a press release informing of its intention to further investigate a data breach that was notified by Adecco Belgium, a temporary employment agency. The data breach affected thousands of biometric data, including fingerprints and images allowing facial recognition, and was suffered by the company Suprema. The compromised data included approximately 2,000 fingerprints of Adecco Belgium’s employees.

Time 2 Minute Read

On August 12, 2019, the Dutch Data Protection Authority (Autoriteit Persoonsgegevens, the “Dutch DPA”) announced its intent to approve Nederland ICT’s Data Pro Code (the “Code”), a code of conduct for the ICT sector. Nederland ICT represents data processors from the IT sector. Data processors that process personal data on behalf of and for a data controller can join this code of conduct. The draft decision of the Dutch DPA regarding the Code was published in the Official Journal of the Netherlands (the “Staatscourant”) on August 12 and interested parties have six weeks to submit their opinion on the draft decision.

Time 3 Minute Read

On July 29, 2019, the Court of Justice of the European Union (the “CJEU”) released its judgment in case C-40/17, Fashion ID GmbH & Co. KG vs. Verbraucherzentrale NRW eV. The Higher Regional Court of Düsseldorf (Oberlandesgericht Düsseldorf) requested a preliminary ruling from the CJEU on several provisions of the former EU Data Protection Directive of 1995, which was still applicable to the case since the court proceedings had started before the implementation of the EU General Data Protection Regulation (“GDPR”).

Time 4 Minute Read

The European Data Protection Board (the “EDPB”) recently adopted its Guidelines 3/2019 on processing of personal data through video devices (the “Guidelines”). Although the Guidelines provide examples of data processing for video surveillance, these examples are not exhaustive. The Guidelines aim to provide guidance on how to apply the EU General Data Protection Regulation (“GDPR”) in all potential areas of video device use.

Time 1 Minute Read

On July 16, 2019, the European Data Protection Board (the “EDPB”) published its Annual Report for 2018 (the “Report”). The Report highlights that the EDPB (1) endorsed 16 guidelines previously adopted by the Article 29 Working Party; (2) adopted four additional guidelines to clarify provisions of the GDPR; (3) adopted 26 consistency opinions to guarantee the consistent application of the EU General Data Protection Regulation (“GDPR”) by the EU data protection authorities; and (4) issued two opinions in the context of the legislative consultation process, as well as a statement on its own initiative and on the draft ePrivacy Regulation.

Time 4 Minute Read

On July 18, 2019, the French Data Protection Authority (the “CNIL”) published new guidelines on cookies and similar technologies (the “Guidelines”). As announced by the CNIL in its action plan on targeted advertising for 2019-2020, its 2013 cookie guidance is no longer valid in light of the strengthened consent requirements of the EU General Data Protection Regulation (“GDPR”). The Guidelines therefore repeal the CNIL’s 2013 recommendations on cookies and reconceive the rules applicable to the use of cookies and similar technologies in France, as they take shape from (1) the provisions of the EU ePrivacy Directive as implemented under French law, and (2) the GDPR consent requirements.

Time 5 Minute Read

The UK Information Commissioner’s Office (“ICO”) published its 2018-19 Annual Report on July 9, 2019. This is the first Annual Report published by the ICO since the EU General Data Protection Regulation (“GDPR”) took effect on May 25, 2018.

Time 4 Minute Read

On July 9, 2019, the European Data Protection Board (the “EDPB”) adopted Opinion 8/2019 on the Competence of a Supervisory Authority in Case of a Change in Circumstances Relating to the Main or Single Establishment (the “Opinion”) at the request of the French and the Swedish data protection authorities (“DPAs”).

Background – The French and Swedish DPAs’ Initial Request

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