Privacy & Information Security Law Blog

The UK Information Commissioner’s Office (“ICO”) recently published a package of detailed guidance and checklists for direct marketing activities. The ICO’s new webpage on direct marketing now includes various resources, including specific guidance for SMEs, business-to-business marketing, and organizations using the marketing services of data brokers, as well as direct marketing FAQs and checklists, and a training module for businesses.

On October 12, 2022, the UK Information Commissioner's Office (“ICO”) launched a public consultation on its draft guidance on employers’ obligations when monitoring at work (“Draft Guidance”). In addition, the ICO has published an impact scoping document, which outlines some of the context and potential impacts of the Draft Guidance (“Impact Scoping Document”).

On September 20, 2022, Indonesia’s parliament ratified the Personal Data Protection Act (the “Act”). The Act is the first comprehensive data protection law to be enacted in Indonesia and will come into effect on a date set by the Minister of State Secretariat. Organizations subject to the Act will have two years to come into compliance with the Act’s requirements.

On July 20, 2022, the U.S. House of Representatives Committee on Energy and Commerce (the “Committee”) passed H.R. 8152, the American Data Privacy and Protection Act (“ADPPA”) (as amended), by a vote of 53-2. The ADPPA next will be put before the full House for a vote.

On June 23, 2022, the U.S. House of Representatives Subcommittee on Consumer Protection and Commerce passed by voice vote H.R. 8152, the American Data Privacy and Protection Act (“ADPPA”). This bipartisan legislation, sponsored by House Energy and Commerce Committee Chairman Frank Pallone (D-NJ), committee Ranking Republican Cathy McMorris Rodgers (R-WA), subcommittee Chairman Jan Schakowsky (D-IL) and subcommittee Ranking Republican Gus Bilirakis (R-FL), is based on the bipartisan, bicameral “Three Corners” draft bill released on June 2, 2022 with the support of Pallone, Rodgers and Senate Commerce Committee Ranking Republican Roger Wicker (R-MS). 

On May 10, 2022, as part of the Queen’s Speech, the UK government announced its intention to introduce a Data Reform Bill (the “Bill”). The UK government’s background and briefing notes to the Queen’s Speech state that the purpose of the Bill is to “take advantage of the benefits of Brexit to create a world class data rights regime…that reduces burdens on businesses, boosts the economy, helps scientists to innovate and improves the lives of people in the UK.”

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.

On October 12, 2021, the Oxford County Court determined that a homeowner had breached the Data Protection Act 2018 (“DPA”) and UK General Data Protection Regulation (“UK GDPR”) by using Ring security cameras around his property. In Dr Mary Fairhurst v Mr Jon Woodard, Fairhurst claimed harassment, nuisance and breach of UK data protection law based on her former neighbor, Woodard’s, use of security cameras and lights around his property. While the claim in nuisance failed, the judge found for the claimant on the claims of harassment and breach of data protection law.

On September 27, 2021, the transition period allowing companies to continue using the old EU Standard Contractual Clauses (“SCCs”) for new transfers from the EU to a third country ended. Companies entering into new transfer agreements incorporating the SCCs must now use those published by the European Commission on June 4, 2021 (the “new SCCs”). Transfers from the UK that rely on SCCs must continue to use the old SCCs.

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.

On May 25, 2021, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth LLP submitted its response (in English and in Mandarin) to the Standing Committee of the National People’s Congress (“NPC”) of the People’s Republic of China on the updated version of the Draft Personal Information Protection Law (“PIPL”).

On May 26, 2021, the Court of Appeal handed down its judgment in the case of R (Open Rights Group and the3million) v Secretary of State for the Home Department and Others [2021] EWCA Civ 800, finding that the UK 2018 Data Protection Act’s (“DPA 2018”) “immigration exemption” is unlawful.

On May 10, 2021, the Ecuadorian National Assembly unanimously approved the Organic Law on Data Protection (the “Data Protection Law”), which President Moreno is expected to sign.

On April 8, 2021, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted comments in response to the Ministry of Public Security (“MPS”) of Vietnam’s Draft Decree on Personal Data Protection (“Draft Decree”).

On March 12, 2021, the Cyberspace Administration of China released Provisions on the “Scope of Necessary Personal Information Required for Common Types of Mobile Internet Applications” (the “Provisions”) (available here in Chinese).

On March 30, 2021, Hunton Andrews Kurth will host a webinar examining Virginia’s new Consumer Data Protection Act.

On March 2, 2021, Virginia’s Governor, Ralph Northam, signed the Consumer Data Protection Act into law without any further amendments. In addition to California, Virginia is now the second state to enact major privacy legislation of general applicability in the U.S.

On February 23, 2021, the Centre for Information Policy Leadership at Hunton Andrews Kurth hosted a webinar on China’s Data Privacy Landscape and Upcoming Legislation.

As we previously reported, significant data privacy bills, titled the Consumer Data Protection Act, are working their way through the Virginia legislature. If enacted, Virginia would be the second state to enact major data privacy legislation of general applicability.

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.

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”).

On December 2, 2020, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted its response to the UK Department for Digital, Culture, Media and Sport’s (“DCMS”) UK National Data Strategy  (“NDS”) consultation.

On December 1, 2020, the Cyberspace Administration of China released draft rules on the “Scope of Necessary Personal Information Required for Common Types of Mobile Internet Applications” (the “Draft Rules”) (in Chinese).

On October 22, 2020, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted its response to the UK Department for Digital, Culture, Media and Sport (“DCMS”) call for views and evidence on its review of representative actions under Section 189 of the Data Protection Act 2018 (“DPA”). Section 189 requires the UK government to review the operation of the representative action provisions of the DPA and provide a report to Parliament by November 25, 2020.

On October 27, 2020, the UK Information Commissioner’s Office (“ICO”) published a report following its investigation into data protection compliance in the direct marketing data broking sector, alongside its enforcement action against Experian. During the investigation, the ICO conducted audits of the direct marketing data broking businesses of the UK’s three largest credit reference agencies (“CRAs”) – Experian, Equifax and TransUnion – and found “significant data protection failures at each” that were “deeply embedded” within the businesses.

On August 27, 2020, the Brazilian Presidency published Decree 10.474/2020 (the “Decree”) in the Official Journal, approving the regulatory structure of the new Brazilian data protection authority (the “ANPD”) and establishing its roles. The Decree will apply after the President-Director of the ANPD is officially appointed through publication in the Official Journal.

On August 20, 2020, Secretary-General of the Presidency of the Republic, Jorge Antônio de Oliveira Francisco, announced that the administrative decree to create the new Brazilian data protection authority (the Autoridade Nacional de Proteção de Dados, or “ANPD”) is ready and may be published at any time, after final technical adjustments are made. The Secretary-General made this statement during his remarks at the webinar “The ANPD: from the letter of law to the practice,” jointly organized by the Centre for Information Policy Leadership (“CIPL”) and the Centro de Estudos de Direito, Internet e Sociedade of Instituto Brasiliense de Direito Público (“CEDIS-IDP”) and hosted by the news channel JOTA.

On August 11, 2020, the Court of Appeal of England and Wales overturned the High Court’s dismissal of a challenge to South Wales Police’s use of Automated Facial Recognition technology (“AFR”), finding that its use was unlawful and violated human rights.

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

On February 12, 2020, Senator Kirsten Gillibrand announced a plan to create a Data Protection Agency through her proposed legislation, the Data Protection Act of 2020. According to Senator Gillibrand, the purpose of the law is to create the new agency and bring the protection of privacy and freedom into the digital age.

On January 8, 2020, the Information Commissioner's Office (“ICO”) launched a consultation on its draft direct marketing code of practice (the “Draft Code”), as required by section 122 of the Data Protection Act 2018 (“DPA 18”). The Draft Code is open for public consultation until March 4, 2020.

On October 30, 2019, Facebook reached a settlement with the UK Information Commissioner’s Office (“ICO”) under which it agreed to pay (without admission of liability) the £500,000 fine imposed by the ICO in 2018 in relation to the processing and sharing of its users’ personal data with Cambridge Analytica.

On October 2, 2019, the UK Court of Appeal handed down its judgment on the appeal in Richard Lloyd v. Google LLC, in which Richard Lloyd, a consumer protection advocate, seeks to bring a representative action on behalf of four million Apple iPhone users against Google LLC in the United States. Previously, the High Court had refused to grant permission for the proceedings to be served outside the UK. The Court of Appeal reversed the High Court’s judgment, granting permission for service outside the UK and allowing the representative action to proceed. The judgment is significant as it paves the way for representative actions (equivalent to class actions) for data protection infringements in the UK.

On September 4, 2019, the High Court of England and Wales dismissed a challenge to South Wales Police’s use of Automated Facial Recognition technology (“AFR”). The Court determined that the police’s use of AFR had been necessary and proportionate to achieve their statutory obligations.

On June 1, 2019, New Decree No. 2019-536 (the “Implementing Decree”) took force, enabling the French Data Protection Act, as amended by an Ordinance of December 12, 2018, likewise to enter into force. This marks the completion of the adaption of French law to the EU General Data Protection Regulation (“GDPR”) and the EU Police and Criminal Justice Directive (Directive (EU) 2016/680).

On April 15, 2019, the UK Information Commissioner’s Office (the “ICO”) issued for public consultation a draft code of practice, “Age Appropriate Design,” that will regulate the provision of online services likely to be accessed by children in the UK. Given the extraterritorial reach of the UK Data Protection Act 2018, organizations based outside of the UK may be subject to the code, which is expected to take effect by the end of 2019. The deadline for responding to the public consultation is May 31, 2019.

On April 17, 2019, the Dutch Data Protection Authority, the Autoriteit Persoonsgegevens (the “Dutch DPA”) issued six recommendations (in Dutch) for companies, to be taken into account when drafting privacy policies for the purpose of Article 24.2 of the EU General Data Protection Regulation (the “GDPR”). Article 24.2 of the GDPR provides the obligation for data controllers to implement privacy policies for accountability purposes, under certain criteria. The published recommendations follow the Dutch DPA’s investigation of companies’ privacy policies. The investigation focused on companies that process sensitive personal data, including health data and data related to individuals’ political beliefs. Alongside the recommendations, the Dutch DPA released a report (in Dutch) summarizing the investigation’s results.

On October 22, 2018, the UK Court of Appeal upheld the High Court’s decision that VM Morrison Supermarkets PLC (“Morrisons”) was vicariously liable for a data breach caused by a disgruntled former employee, despite Morrisons being cleared of any wrongdoing (VM Morrison Supermarkets PLC v Various Claimants). The case is important, given its potential “floodgate” effect on data breach class action claims in the UK. The Supreme Court has granted Morrisons permission to appeal the judgment on all grounds.

On April 9, 2019, the UK Information Commissioner’s Office (the “ICO”) levied one of its most significant fines under the Data Protection Act 1998 (the “DPA”) against pregnancy and parenting club Bounty (UK) Limited (“Bounty”), fining the company GBP 400,000. Bounty, which provides new and expectant mothers with information and offers for products and services, collects personal data online, via an app, and offline through hard copy cards. The company also offered a data broking service. Bounty came to the attention of the ICO as a “significant supplier” of personal data in the context of the ICO’s wider and ongoing investigation into the data broking industry.

On December 18, 2017, the French data protection authority (“CNIL”) publicly announced that it served a formal notice to WhatsApp regarding the sharing of WhatsApp users’ data with Facebook Inc. (“Facebook”). This decision, dated November 27, 2017, follows the CNIL’s investigations regarding Facebook’s 2014 acquisition of WhatsApp. In 2016, WhatsApp updated its Terms of Service and Privacy Policy to reflect the sharing of information with Facebook. Following this update, the Article 29 Working Party (“Working Party”) requested explanations from WhatsApp on its data processing practices and data sharing, and asked the company to stop sharing data for targeted advertising purposes. The Working Party also gave a mandate to its subgroup in charge of the cooperation on investigations and sanctions to coordinate actions of the relevant national data protection authorities. It is in that context that the CNIL started its investigation of WhatsApp’s data processing practices.

On September 14, 2017, the UK Government introduced a new Data Protection Bill (the “Bill”) to Parliament. The Bill is intended to replace the UK’s existing Data Protection Act 1998 and enshrine the EU General Data Protection Regulation (the “GDPR”) into UK law once the UK has left the European Union. The GDPR allows EU Member States to enact, via national law, exemptions from the various provisions of the GDPR, which the Bill also seeks to implement.

On June 20, 2017, the UK Information Commissioner’s Office (“ICO”) published an updated version of its Code of Practice on Subject Access Requests (the “Code”). The updates are primarily in response to three Court of Appeal decisions from earlier this year regarding data controllers’ obligations to respond to subject access requests (“SARs”). The revisions more closely align the ICO’s position with the court’s judgments.

As previously published on the Data Privacy Laws blog, Pablo A. Palazzi, partner at Buenos Aires law firm Allende & Brea, provides the following report.

Earlier this month, the Argentine Data Protection Agency (“DPA”) posted the first draft of a new data protection bill (the “Draft Bill”) on its website. Argentina’s current data protection bill was enacted in December 2000. Argentina was the first Latin American country to be recognized as an adequate country by the European Union.

On February 1, 2017, Matt Hancock, the UK Government Minister responsible for data protection, was questioned by the House of Lords committee on the UK’s implementation plan of the EU General Data Protection Regulation (“GDPR”) in the context of the UK’s looming exit from the EU. In responding to the questioning, Hancock revealed further details into the UK Government’s position on implementing the GDPR into UK law.

On October 7, 2016, the French Digital Republic Bill (the “Bill”) was enacted after a final vote from the Senate. The Bill aligns the French legal data protection framework with the EU General Data Protection Regulation (“GDPR”) requirements before the GDPR becomes applicable in May 2018.

On October 3, 2016, at the Paris Motor Show, the French Data Protection Authority ("CNIL") reported on the progress of a new compliance pack on connected vehicles. The work was launched on March 23, 2016, and should be finalized in Spring 2017.

On July 20, 2016, the French Data Protection Authority (“CNIL”) announced that it issued a formal notice to Microsoft Corporation (“Microsoft”) about Windows 10, ordering Microsoft to comply with the French Data Protection Act within three months.

Background

Following the launch of Microsoft’s new operation system, Windows 10, in July 2015, the CNIL was alerted by the media and political parties that Microsoft could collect excessive personal data via Windows 10. A group composed of several EU data protection authorities was created within the Article 29 Working Party to examine the issue and conduct investigations in their relevant EU Member States. The CNIL initiated its investigation and carried out seven online inspections in April and June 2016. The CNIL also questioned Microsoft on certain points of its privacy statement.

On June 28, 2016, the UK Information Commissioner’s Office (“ICO”) released its Annual Report for 2015 -2016 (the “Report”).

According to the Report, the ICO has dealt with an increase in the number of data protection concerns, handling 16,388 complaints in total. Particularly noteworthy is the £130,000 fine imposed on Pharmacy 2U for breach of the fair processing requirements under the UK Data Protection Act 1998. Pharmacy 2U sold details of over 20,000 customers to a list marketing company without customers' knowledge or consent.

On June 30, 2016, a joint committee composed of representatives from both chambers of the French Parliament (“Joint Committee”) reached a common position on the French ‘Digital Republic’ Bill that rejects the data localization amendment previously approved by the French Senate, but significantly amends other aspects of the French Data Protection Act.

On January 1, 2016, a Dutch law became effective that (1) includes a general obligation for data controllers to notify the Data Protection Authority (“DPA”) of data security breaches, and (2) authorizes the DPA to impose direct fines for violations of the Data Protection Act.

On July 28, 2015, the UK Supreme Court announced its decision to grant permission in part for Google Inc. (“Google”) to appeal the England and Wales Court of Appeal’s decision in Google Inc. v Vidal-Hall and Others.

On September 4, 2014, the UK Information Commissioner’s Office (“ICO”) published guidance on data protection for the media entitled Data protection and journalism: a guide for the media (the “Guidance”).

On July 15, 2014, the UK Information Commissioner’s Office (“ICO”) released its Annual Report for 2013/14 (the “Report”). Entitled Effective, Efficient - and Busier than Ever, the Report illustrates the rapid growth of data protection and freedom of information issues in the UK in the past year. It highlights the fact that the ICO has received increasing numbers of questions and complaints from members of the public, processed record numbers of cases, and issued its highest ever level of fines, totaling almost £1.97 million. The Report also emphasizes the fact that the ICO’s resources are stretched and, in a direct appeal to both the UK Parliament and the Ministry of Justice, calls for “stronger powers, a more sustainable funding system, and a clearer guarantee of independence.”

On May 13, 2014, the French data protection authority (“CNIL”) decided to examine 100 mobile apps most commonly used in France.

On December 18, 2013, the UK Information Commissioner’s Office (“ICO”) published its proposed strategy for handling complaints, stating that, beginning in April 2014, it will focus its efforts on the investigation of serious and repeat violations of data protection laws. The ICO also intends to publish regular reports highlighting the number of complaints it receives about organizations and enforcement actions it has taken. The ICO is seeking comments on the proposed strategy, which is explained in a public consultation document, before January 31, 2014.

As we reported on October 8, 2013, the Information Commissioner’s Office (“ICO”) has announced it is reviewing its Privacy Notices Code of Practice (the “Code”) to assess whether it should be updated. In anticipation of the November 30^th closing date for comments on the Code, today the ICO’s Head of Policy Delivery posted a request for feedback on the ICO’s blog.

In its October 2013 e-newsletter, the UK Information Commissioner’s Office (“ICO”) announced that it is reviewing its Privacy Notices Code of Practice (the “Code”) to assess whether it should be updated. The Code, last updated in December 2010 and issued under Section 51 of the UK Data Protection Act 1998 (the “DPA”), is designed to assist organizations “to collect and use information appropriately by drafting clear and genuinely informative privacy notices.”

On September 10, 2013, the UK Information Commissioner’s Office (“ICO”) published new guidance on direct marketing (the “Guidance”). The Guidance explains the application of the two principal legislative instruments that affect direct marketing in the UK: (1) the Privacy and Electronic Communications (EC Directive) Regulations 2003 (“PECR”), which relates specifically to direct marketing; and (2) the Data Protection Act 1998 (the “DPA”), which governs data protection issues generally. The Guidance is not legally binding, but it reflects the ICO’s interpretation of the requirements and indicates how the ICO is likely to enforce them.

On August 6, 2013, the UK Information Commissioner’s Office (“ICO”) opened a new consultation on a draft code of practice on conducting privacy impact assessments (the “Code”).

On June 20, 2013, the UK Information Commissioner’s Office (“ICO”) launched its Annual Report and Financial Statements for 2012/13 (the “Report”). Introducing the Report, Information Commissioner Christopher Graham strongly emphasized that, as consumers become increasingly aware of their information rights, good privacy practices will become a commercial benefit and a business differentiator. He outlined the seven key “e”s of the ICO’s role: enforce, educate, empower, enable, engage, and to be effective and efficient.

The UK Information Commissioner’s Office (“ICO”) has published guidance on the application of the Data Protection Act 1998 (“DPA”) to social networking sites and online forums. The guidance emphasizes that organizations and individuals that process data for non-personal purposes must comply with DPA requirements in their use of social networking sites and online forums just as they would in any other context.

On May 20, 2013, the Estonian Data Protection Inspectorate issued its Annual Report 2012 (the “Report,” summary available in English). The number of inquiries, complaints and supervision proceedings have remained the same over the last few years. The main topics of complaints include employment relations, CCTV, electronic direct marketing and social media. The Inspectorate stated that its primary goal is to stop violations of the law, not to impose sanctions. According to the Report, the Inspectorate issued orders regarding compliance in 48 cases and imposed fines in 39 cases.

On April 30, 2013, the regional court of Berlin enjoined Apple Sales International, which is based in Ireland, (“Apple”) from relying on eight of its existing standard data protection clauses in contracts with customers based in Germany. The court also prohibited Apple’s future use of such clauses.

On May 6, 2013, the Global Privacy Enforcement Network (“GPEN”) announced its first “Internet Privacy Sweep,” in which 19 data protection authorities are participating. This joint effort, which runs May 6-12, 2013, involves a review of the information notices posted online by major websites.

On April 29, 2013, the Belgian Privacy Commission announced that it referred a data breach case involving The National Belgian Railway Company to the Brussels Public Prosecutor. The data breach, which occurred in December 2012, resulted in the 1.46 million sets of customer data being made publicly available online. The Privacy Commission investigated the case and concluded that there had been a violation of the Belgian Data Protection Act, but since the Privacy Commission does not have the authority to impose sanctions for the violation, it referred the case to the prosecutor’s office to initiate criminal proceedings. The Privacy Commission commented that this is the first time that it has referred a data breach case to the Public Prosecutor.

On March 20, 2012, the UK Information Commissioner’s Office announced that it has issued a monetary penalty of £90,000 against DM Design Bedrooms Ltd. (“DM Design”) for making thousands of unwanted marketing calls.

On March 7, 2013, the UK Information Commissioner’s Office (“ICO”) published guidance (the “Guidance”) on Bring Your Own Device (“BYOD”) to explain to data controllers “what they need to consider when permitting the use of personal devices to process personal data for which they are responsible.” BYOD refers to the use of individuals’ personal devices to access and store corporate information.

The UK Information Commissioner’s Office has opened a public consultation on a proposed code of practice for the press (the “Consultation”). Pursuant to Section 51 of the UK Data Protection Act 1998 (the “DPA”), the ICO has the authority to issue industry codes of practice.

On February 20, 2013, the UK Court of Appeal issued its decision in Smeaton v Equifax Plc, [2013] EWCA Civ 108, overturning an award of damages to an individual about whom a credit reference agency had maintained an inaccurate record.

On March 5, 2013, the French Data Protection Authority (the “CNIL”) announced that the French High Council for Statutory Auditors (“H3C”) and the U.S. Public Company Accounting Oversight Board (“PCAOB”) signed a Statement of Protocol (the “Protocol”) on January 31, 2013, to govern the exchange of information, including personal data, between them.

On January 28, 2013, the London office of Hunton & Williams marked European Data Privacy Day with the launch of the fourth edition of Data Protection Law & Practice, written by Senior Attorney Rosemary Jay. A panel comprised of the current UK Information Commissioner, Christopher Graham; his three predecessors, Eric Howe CBE, Elizabeth France CBE and Richard Thomas CBE; and the UK Minister of State for Justice, Lord McNally, spoke at the event and provided a retrospective on data protection in the United Kingdom since the Information Commissioner’s Office’s (“ICO’s”) inception in 1984.

On January 11, 2013, the UK Government published its response (the “Response”) to the UK Justice Select Committee’s opinion on the European Commission’s proposed revised data protection framework. The Response highlights a number of concerns expressed by the UK Government regarding the Commission’s legislative proposals.

On January 28, 2013, European Data Privacy Day, the London office of Hunton & Williams hosted the launch of senior attorney Rosemary Jay’s fourth edition book, Data Protection Law & Practice, by publisher Sweet & Maxwell.

On January 24, 2013, the UK Information Commissioner’s Office (“ICO”) served Sony Computer Entertainment Europe Limited (“Sony”) with a monetary penalty of £250,000 resulting from a serious breach of the Data Protection Act 1998. An April 2011 security incident involving the Sony PlayStation Network Platform affected the personal data of millions of customers, including names, addresses, email addresses, dates of birth, account passwords and credit card details.

On December 13, 2012, the UK Information Commissioner’s Office (“ICO”) announced a consultation on a draft subject access code of practice (the “Code”). The Code is open for public comment until February 21, 2013.

On November 23, 2012, a German data protection working group on advertising and address trading published guidelines (in German) on the collection, processing and use of personal data for advertising purposes (the “Guidelines”). The working group was established by the committee of German data protection authorities (“DPAs”) and is chaired by the Bavarian DPA.

On November 28, 2012, the UK Information Commissioner’s Office (“ICO”) issued monetary penalties totaling £440,000 to two owners of a marketing company that sent millions of unlawful spam SMS text messages over a period of three years.

On November 20, 2012, the UK Information Commissioner’s Office (“ICO”) published guidance on IT asset disposal for organizations (the “Guidance”) to explain “to data controllers what they need to consider when disposing of electronic equipment that may contain personal data.”

On November 20, 2012, the UK Information Commissioner’s Office (“ICO”) published “Anonymisation: Managing Data Protection Risk Code of Practice” (the “Code”). The purpose of the Code is to provide organizations with a framework for assessing the risks of anonymization. It also sets forth good practice recommendations that may be adopted by organizations to provide a “reasonable degree of confidence” that the publication and sharing of anonymized data will not lead to an “inappropriate disclosure of personal data.” The published Code follows a consultation on the same topic earlier this year. The ICO also announced the creation of the UK Anonymisation Network, which will promote the sharing of good practices related to anonymization across the public and private sectors.

On September 27, 2012, the UK Information Commissioner’s Office (“ICO”) published guidance on complying with the requirements of the UK Data Protection Act 1998 (“DPA”) in the context of cloud computing services (the “Guidance”). In its Guidance, the ICO reminds data controllers that transferring personal data to the cloud does not absolve them of their compliance obligations under the DPA.

The UK Information Commissioner’s Office’s (“ICO”) has revised its statutory Code of Practice on assessment notices (the “Code”). The ICO first issued the Code in 2010, when its audit powers came into force. The Code has now been updated to reflect changes in auditing standards and practices.

In recent weeks, regulators in California and Illinois have issued guidance on responding to data security breaches, while UK and California authorities released online forms for organizations to use when providing notification of a breach to regulators.

In December 2011, the UK Information Commissioner’s Office (“ICO”) released a new breach notification form, reinforcing its expectation that organizations provide notification whether or not such notification is legally required. Sector-specific breach notification requirements were introduced in the UK by The Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011, and since May 2011, public electronic communication service providers have been required to notify the ICO, and in some cases affected individuals, in the event of a data security breach. All other organizations are strongly encouraged to notify the ICO of serious security breaches, and the fact that an incident was reported voluntarily is something the ICO takes into consideration when determining the appropriate enforcement action.

On January 25, 2012, the European Commission released a data protection law reform package, including its proposed General Data Protection Regulation (the “Proposed Regulation”). The UK Information Commissioner’s Office (“ICO”) has reacted positively to the Proposed Regulation, in particular commending efforts to strengthen the rights of individuals, the recognition of important privacy concepts such as privacy by design and privacy impact assessments, and new accountability requirements to ensure organizations properly demonstrate and document their data protection safeguards and procedures.

Members of Parliament on the House of Commons Justice Select Committee have called for courts in the United Kingdom to be given greater powers to imprison and fine individuals who breach the Data Protection Act (“DPA”). The Committee stated in its October 18, 2011 report that the current penalties for unlawfully obtaining personal data (under Section 55 of the DPA) are an inadequate deterrent, and urged the government to exercise its power to introduce prison sentences without delay. Although currently a magistrates’ court can issue fines of up to £5,000 for breaches of Section 55 (and the Crown Court can impose unlimited fines), in practice, penalties often are limited to only a few hundred pounds.

On September 22, 2011, new provisions under the French Data Protection Authority’s (“CNIL’s”) internal regulation (Délibération n°2011-249 du 8 septembre 2011) came into force. The CNIL recently amended its regulations to incorporate a new chapter (Chapter IV bis) that sets forth a specific procedure for issuing privacy seals in accordance with the French Data Protection Act. The Act authorizes the CNIL to “issue a quality label to products or procedures intended to protect individuals with respect to processing of personal data, once [the CNIL] has recognized them as in compliance with the provisions of the Act.”

On August 24, 2011, France’s new law concerning electronic communications (Ordonnance n° 2011-1012 du 24 août 2011 relative aux communications électroniques, or the “Ordinance”) came into force.  The Ordinance implements the provisions of the revised EU Directive 2002/58/EC (the “e-Privacy Directive”) with respect to the French Data Protection Act of 1978, the French Postal and Electronic Communications Code and the French Consumer Protection Code.  In particular, the Ordinance introduces new provisions under the French Data Protection Act, which impose an obligation on electronic communication service providers to provide notice in the event of a data security breach. 

On August 24, 2011, France’s new law concerning electronic communications (Ordonnance n° 2011-1012 du 24 août 2011 relative aux communications électroniques, or the “Ordinance”) came into force.  The Ordinance implements the provisions of the revised EU Directive 2002/58/EC (the “e-Privacy Directive”) with respect to the French Data Protection Act of 1978, the French Postal and Electronic Communications Code and the French Consumer Protection Code.  Specifically, the Ordinance amends the existing legal framework concerning cookies and introduces an opt-in regime for the use of cookies.

On July 1, 2011, the French Data Protection Authority (the “CNIL”) released a comprehensive handbook for health professionals (the “Guidance”).  The Guidance reiterates that health professionals (e.g., doctors, nurses, hospitals, research laboratories) have an obligation to comply with the French Data Protection Act when collecting and processing health data on patients.

Two former employees of mobile phone provider T-Mobile have been ordered by a court in the United Kingdom to pay £73,700 (approximately $120,000) for the theft of T-Mobile customers’ personal data.  The Chester Crown Court ordered David Turley and Darren Hames to pay £45,000 and £28,700 respectively, under confiscation orders, along with prosecution costs.

On May 11, 2011, the UK Information Commissioner’s Office (the “ICO”) published a new statutory code of practice on the sharing of personal data.  As stated in the ICO’s press release, the code of practice covers best practices for both routine and one-off data sharing activities, and offers organizations tips for reducing the risk of inappropriate or insecure data sharing.  By helping organizations understand how to share data appropriately, the code of practice should facilitate compliance with the Data Protection Act and minimize the risk of enforcement actions by the ICO or other regulators.

A new French law containing several key amendments to the French Data Protection Act and creating a new public authority referred to as the “Defender of Rights” (Loi n°2011-334 du 29 mars 2011 relative au Défenseur des droits, or the “Law”) came into effect on March 30, 2011.  The Defender of Rights, whose role is to defend civil rights and liberties, to promote children’s rights and to fight against discrimination, also will serve as a member of the CNIL’s plenary committee.

On January 13, 2011, a Bill (Projet de loi organique relatif au Défenseur des droits) containing several amendments to the French Data Protection Act was preliminarily adopted by the French National Assembly.  If enacted, the Bill would amend several key provisions of the French Data Protection Act, including revisions regarding the powers of the French Data Protection Authority (the “CNIL”), and the role of Chairman of the CNIL.  The amendments are summarized below.

On November 25, 2010, the German data protection authorities responsible for the private sector (also known as the “Düsseldorfer Kreis”) issued a resolution on the minimum requirements for the qualifications and independence of company data protection officers (“DPOs”).  This initiative follows inspections carried out within companies that revealed a generally insufficient level of expertise among DPOs given data processing complexities and the requirements set by the Federal Data Protection Act.  The DPAs recognize that a DPO’s workload depends primarily on the size and number of data controllers the DPO supervises, industry-specific factors related to data processing and the level of protection required for the types of personal data being processed.  Changes with respect to these factors frequently increase the burden on DPOs without a compensating increase in resources needed to ensure proper oversight.

In the first use of his powers to impose monetary penalties, the UK Information Commissioner has announced fines for two organizations with respect to serious breaches of the UK Data Protection Act.

• Hertfordshire County Council must pay a fine of £100,000 after staff accidentally faxed highly sensitive information to the wrong recipients, on two separate occasions.
• A4e Limited, an employment services company, must pay £60,000 following the theft of an unencrypted laptop from an employee’s home, putting the data of 24,000 people at risk.

The UK Information Commissioner’s Office (“ICO”) has announced the outcome of its investigation into the collection of payload data by Google Street View cars in the UK.  The ICO has concluded that there was a “significant breach” of the UK Data Protection Act in that “the collection of this information was not fair or lawful and constitutes a significant breach of the first principle [of the Act].”

While the ICO has the power to impose monetary penalties for serious breaches of the Act, capped at £500,000 per breach, in this case the ICO has determined that the appropriate course is to secure an undertaking from Google, requiring it to implement additional data protection safeguards.

The UK Information Commissioner’s Office (the “ICO”) has indicated that UK law firm ACS:Law could face a maximum penalty of £500,000 following a major data breach.

Personal information, including names and addresses, of over 8,000 Sky broadband subscribers and 400 PlusNet users was made publicly available following an apparent attack on ACS:Law’s website.  The broadband customers involved are suspected by ACS:Law’s clients of illegally file-sharing copyright work, including music and, in some instances, pornographic films.

On June 17, 2010, the French data protection authority (the “CNIL”) reported that it had conducted an on-site investigation at Google on May 19 to examine activities by Google’s Street View cars.  This investigation followed Google’s May 14 announcement that it had inadvertently captured Wi-Fi signals emitted in locations where its vehicles were taking photos.

On June 17, 2010, the French data protection authority (the “CNIL”) published its Annual Activity Report for 2009 (the “Report”) in which it outlines some of its priorities for the upcoming year.

In February 2009, the CNIL published a report on online targeted advertising. Among other things, the CNIL voiced its concern regarding online behavioral and advertising activities and analyzed the risks of increasing user profiling.  In 2010, the CNIL is expected to issue a joint opinion with the Article 29 Working Party on targeted advertising and behavioral analysis.  The CNIL also will open a dialogue with several stakeholders from the marketing sector to work on adopting a code of best practices.

On January 12, 2010, the UK government laid regulations before Parliament to bring into force civil monetary penalties of up to £500,000 ($800,000) for serious data breaches.  These penalties are likely to take effect starting April 6, 2010.  Significantly, the penalties will apply not only to data security breaches, but also to all serious breaches of the UK Data Protection Act 1998.  Accordingly, collecting personal data for a sweepstakes contest then deliberately, and without consent, disclosing the data to a third party to populate a tracing database for commercial purposes might well be subject to a penalty.