Privacy & Information Security Law Blog

On November 16, 2023, the European Data Protection Board (“EDPB”) published its Guidelines 2/2023 on the Technical Scope of Art. 5(3) of the ePrivacy Directive (the “Guidelines”).

On December 31, 2021, the French Data Protection Authority (the “CNIL”) imposed a €150,000,000 fine on Google and a €60,000,000 fine on Facebook (now Meta) for violations of French rules on the use of cookies.

On September 29, 2021, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth published a paper on the Draft ePrivacy Regulation (“ePR”), in the context of the Trilogue Discussions between the EU Commission, EU Council and EU Parliament (the “Paper”).

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.

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.

On February 10, 2021, representatives of the EU Member States reached an agreement on the Council of the European Union’s (the “Council’s”) negotiating mandate for the draft ePrivacy Regulation, which will replace the current ePrivacy Directive. The text approved by the EU Member States was prepared under Portugal’s Presidency and will form the basis of the Council’s negotiations with the European Parliament on the final terms of the ePrivacy Regulation.

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.

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.

On October 6, 2020, the Court of Justice of the European Union (“CJEU”) handed down Grand Chamber judgments determining that the ePrivacy Directive (the “Directive”) does not allow for EU Member States to adopt legislation intended to restrict the scope of its confidentiality obligations unless they comply with the general principles of EU law, particularly the principle of proportionality, as well as fundamental rights under the Charter of Fundamental Rights of the European Union (the “Charter”).

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.

On June 24, 2020, the European Commission (“the Commission”) submitted its first report on the evaluation and review of the EU General Data Protection Regulation (“GDPR”) to the European Parliament and Council. The report is required under Article 97 of the GDPR and will be produced at four year intervals going forward.

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.

On October 4, 2019, the Presidency of the European Council published its revised text (the “Revised Draft”) of the Proposal for a Regulation Concerning the Respect for Private Life and the Protection of Personal Data in Electronic Communications (the “Draft ePrivacy Regulation”). The Revised Draft was released in preparation for the Working Party on Telecommunications and Information Society’s meeting, which took place on October 11, 2019 (the “WP Tele”) and introduces limited amendments compared to the draft amendments proposed by the Presidency of the European Council last month.

On October 1, 2019, the Court of Justice of the European Union (“CJEU”) issued its decision in an important case involving consent for the use of cookies by a German business called Planet49. Importantly, the Court held that (1) consent for cookies cannot be lawfully established through the use of pre-ticked boxes, and (2) any consent obtained regarding cookies cannot be sufficiently informed in compliance with applicable law if the user cannot reasonably comprehend how the cookies employed on a given website will function.

On September 18, 2019, the Presidency of the European Council published its proposed amendments to the Proposal for a Regulation Concerning the Respect for Private Life and the Protection of Personal Data in Electronic Communications (the “Draft ePrivacy Regulation”). The Draft ePrivacy Regulation will replace the ePrivacy Directive and will complete the EU’s framework for data protection and confidentiality of electronic communications.

On June 28, 2019, the French data protection authority (the “CNIL”) published its action plan for 2019-2020 to specify the rules applicable to online targeted advertising and to support businesses in their compliance efforts.

The UK Information Commissioner’s Office (“ICO”) recently published an updated report on adtech, following a Fact Finding Forum held in March 2019 and consultation with industry players. The report focuses on whether and how organizations in the adtech sector can comply with the EU General Data Protection Regulation (“GDPR”) and the UK’s implementation of the e-Privacy Directive, known as the Privacy and Electronic Communications Regulations (“PECR”).

The UK’s Information Commissioner’s Office (“ICO”) has fined Vote Leave Limited (the UK’s official Brexit campaign) £40,000 for sending almost 200,000 unsolicited texts promoting the aims of the campaign. In an unrelated action, the ICO has carried out searches of a business believed to have been responsible for initiating nuisance telephone calls. The ICO has highlighted nuisance calls, spam texts and unsolicited direct marketing as areas of “significant public concern,” and is increasingly imposing sanctions on businesses that infringe the Privacy and Electronic Communications Regulations 2003 (“PEC Regulations”), which prohibit these practices. In its view, the monetary penalty imposed on Vote Leave should act as a “deterrent against non-compliance, on the part of all persons running businesses currently engaging in these practices.”

On April 4, 2017, the Article 29 Working Party (the “Working Party”) adopted an Opinion on the Proposed Regulation of the European Commission for the ePrivacy Regulation (the “Proposed ePrivacy Regulation”). The Proposed ePrivacy Regulation is intended to replace the ePrivacy Directive and to increase harmonization of ePrivacy rules in the EU. A regulation is directly applicable in all EU Member States, while a directive requires transposition into national law. 

On February 15, 2017, the European Data Protection Supervisor (“EDPS”) published its Priorities for 2017 (the “EDPS Priorities”). The EDPS Priorities consist of a note listing the strategic priorities and a color-coded table listing the European Commission’s proposals that require the EDPS’ attention, sorted by level of priority.

On December 12, 2016, Politico reported that the European Commission intends to replace the e-Privacy Directive with a Regulation. The planned shift from a Directive to a Regulation has important legal consequences under EU law, as it means that instead of creating a floor upon which EU Member States may base the creation of their own versions of the law, a Regulation will create a harmonized set of requirements at the EU level that are directly applicable in the Member States.

On July 25, 2016, the Article 29 Working Party (the “Working Party”) and the European Data Protection Supervisor (“EDPS”) released their respective Opinions regarding the review of Directive 2002/58/EC on privacy and electronic communications (the “ePrivacy Directive"). Both the Working Party and the EDPS stressed that new rules should complement the protections available under the EU General Data Protection Regulation (“GDPR”).

On March 16, 2016, the Centre for Information Policy Leadership (“CIPL”) at Hunton & Williams LLP co-hosted a one-day workshop in Amsterdam, Netherlands, together with the Dutch Ministry of Security and Justice, to kick off CIPL’s new long-term project on the implementation of the EU General Data Protection Regulation (“GDPR”).

On April 11, 2016, the European Commission launched a public consultation to evaluate and review Directive 2002/58/EC on the processing of personal data and the protection of privacy in the electronic communications sector, also known as the e-Privacy Directive.

Technological advances and the advent of the EU General Data Protection Regulation (“GDPR”) have prompted the European Commission to review the e-Privacy Directive, which was last updated in 2009.

On January 7, 2016, the European Data Protection Supervisor (the “EDPS”) published his Priorities for 2016. The EDPS Priorities consists of a cover note listing the strategic priorities of the EDPS in 2016 and a color-coded table listing the European Commission’s proposals that require the EDPS’ attention, per level of priority.

In line with the EDPS Strategy 2015-2019 unveiled in March 2015, the EDPS will set his focus on the following areas of strategic importance:

On January 20, 2015, a group of public officials and industry representatives met in a public discussion panel in Brussels to debate the progress of the proposed EU General Data Protection Regulation (the “ Proposed Regulation”) and the major themes that are yet to be resolved. The panelist included Paul Nemitz, Director for the Fundamental Rights and Union Citizenship of the European Commission, Jan Philipp Albrecht, MEP and Vice Chair of the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs, and Pat Walshe, Director of Privacy and Public Policy of Groupe Speciale Mobile Association.

On November 25, 2014, the Article 29 Working Party (the “Working Party”) adopted Opinion 9/2014 (the “Opinion”) on device fingerprinting. The Opinion addresses the applicability of the consent requirement in Article 5.3 of the e-Privacy Directive 2002/58/EC (as amended by Directive 2009/136/EC) to device fingerprinting. As more and more website providers suggest using device fingerprinting instead of cookies for the purpose of providing analytics or for tracking purposes, the Working Party clarifies how the rules regarding user consent to cookies apply to device fingerprinting. Thus, the Opinion expands on Opinion 04/2012 on the Cookie Consent Exemption.

On March 25, 2014, the Article 29 Working Party adopted Opinion 03/2014 (the “Opinion”) providing guidance on whether individuals should be notified in case of a data breach.

The Opinion goes beyond considering the notification obligations contained in the e-Privacy Directive 2002/58/EC, which requires telecommunications service providers to notify the competent national authority of all data breaches. The Directive also requires notification (without undue delay) to the affected individuals when the data breach is likely to adversely affect the personal data or privacy of individuals, unless the service provider has satisfactorily demonstrated that it has implemented appropriate technological safeguards that render the relevant data unintelligible to unauthorized parties and that these measures were applied to the data concerned by the security breach.

On December 16, 2013, the French Data Protection Authority (“CNIL”) released a set of practical FAQs (plus technical tools and relevant source code) providing guidance on how to obtain consent for the use of cookies and similar technologies in compliance with EU and French data protection requirements (the “CNIL’s Guidance”). Article 5.3 of the revised e-Privacy Directive 2002/58/EC imposes an obligation to obtain prior consent before placing or accessing cookies and similar technologies on web users’ devices. Article 32-II of the French Data Protection Act transposes this obligation into French law.

On October 2, 2013, the Article 29 Working Party (the “Working Party”) issued a Working Document providing guidance on how to obtain consent for the use of cookies and similar technologies in compliance with EU legal requirements (“Working Document”).

On September 26, 2013, the UK Information Commissioner’s Office (“ICO”) published new breach notification guidance (the “Guidance”), applicable to telecom operators, Internet service providers (“ISPs”) and other public electronic communications service (“ECS”) providers.

This week a new breach notification regulation takes effect across the EU. The Regulation on the measures applicable to the notification of personal data breaches under Directive 2002/58/EC (the “Regulation”) specifies the technical measures of how Internet service providers, telecommunications providers and other public electronic communications service (“ECS”) providers must notify of data breaches.

On July 1, 2013, the Republic of Croatia joined the European Union, increasing the number of EU Member States to 28. As of the day of its accession, Croatia must implement the acquis communautaire (the complete body of the EU legislation), which includes the EU Data Protection Directive 95/46/EC (“Data Protection Directive”).

On June 24, 2013, the European Commission announced new technical implementing measures that address the EU data breach notification requirement for telecom operators and internet service providers (“ISPs”). Based on a Commission Regulation, these companies must:

• notify the competent national authority of the incident (or at least provide an initial description thereof) within 24 hours after detection of the breach;
• outline which data are affected and what measures have been or will be taken by the company;
• pay attention to the type of data compromised when assessing whether to notify subscribers (i.e. evaluating whether the breach is likely to have an adverse effect on personal data or privacy); and
• use a standardized format for notifying the competent national authority (e.g. an online form which is the same for all EU Member States).

On June 14, 2013, the European Data Protection Supervisor (the “EDPS”) issued an Opinion regarding a joint communication by the European Commission and the High Representative of the Union for Foreign Affairs and Security Policy, Cyber Security Strategy of the European Union: an Open, Safe and Secure Cyberspace (the “Strategy”), as well as the European Commission’s proposed draft directive to ensure uniformly high security measures for network and information security across the EU (the “NIS Directive”). The EDPS welcomes recognizing privacy and data protection as core values of a robust cybersecurity policy, as opposed to separating out security and privacy, but draws attention to several deficiencies, stating that “the ambitions of the strategy are not reflected in how it will be implemented.”

On May 20, 2013, the Irish Office of the Data Protection Commissioner (“ODPC”) published its annual report for 2012 (the “Report”). The Report summarizes the activities of the ODPC during 2012, including its investigations and audits, policy matters, and European and international activities.

On February 27, 2013, the Article 29 Working Party (the “Working Party”) adopted an Opinion (the “Opinion”) addressing personal data protection issues related to the development and use of applications on mobile devices. The Opinion identifies the key data protection risks associated with mobile apps and clarifies the legal framework and obligations applicable to the various parties involved in the development and distribution of mobile apps, including app stores, app developers, operating system and device manufacturers and advertisers.

On November 21, 2012, the UK Committee of Advertising Practice (“CAP”) released new rules on online behavioral advertising (“OBA”). CAP is the UK body which writes and maintains the UK advertising codes, which are administered and enforced by the UK Advertising Standards Authority (“ASA”).

On June 7, 2012, the Article 29 Working Party (the “Working Party”) adopted an Opinion analyzing the exemptions to the prior opt-in consent requirement for cookies. Although the Opinion focuses on cookies, the Working Party also notes that the same analysis applies to any technology allowing information to be stored or accessed on a user’s computer or mobile device.

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 December 8, 2011, the Article 29 Working Party (the “Working Party”) adopted an Opinion on the European Advertising Standards Alliance (“EASA”) and IAB Europe best practice recommendations for the online behavioral advertising (“OBA”) industry to comply with Article 5.3 of the revised e-Privacy Directive 2002/58/EC (the “cookie clause”). The cookie clause requires a user’s informed consent for the use of cookies and similar technologies that store and access information in the user’s terminal device. Finding practical ways of complying with the cookie clause has proven challenging for the OBA industry, which relies heavily on these kinds of tracking mechanisms.

On September 14, 2011, the Article 29 Working Party (the “Working Party”) met with representatives of the European Advertising Standards Alliance (“EASA”) and IAB Europe, to discuss the industry’s new self-regulatory code of conduct for online behavioral advertising (the “Code”), which was released on April 14, 2011.

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.

Speaking at the British Bankers’ Association’s Data Protection and Privacy Conference in London on June 20, 2011, Viviane Reding, Vice President of the European Commission and Commissioner for Justice, Fundamental Rights and Citizenship, signaled her intention to streamline data protection to “simplify the regulatory environment” and “substantially reduce the administrative burden” for businesses.  In return, Reding expects businesses to ensure “safe and transparent digital products and services.”

The German Data Protection Authorities of Berlin and North Rhine-Westphalia have issued a paper containing Frequently Asked Questions about the German statutory data breach notification requirement that went into effect on September 1, 2009.  The paper provides detailed information on key questions concerning the procedure for notification as required by Section 42a of the German Federal Data Protection Act.

On May 16, 2011, the Article 29 Working Party (the “Working Party”) adopted an Opinion on geolocation services on smart mobile devices (the “Opinion”).  The Opinion clarifies the legal framework and obligations applicable to geolocation services such as maps and navigation tools, geo-personalized services, geotagging of content on the Internet, child control and location-based advertising.

On April 14, 2011, the European Advertising Standards Alliance (“EASA”) and IAB Europe released complementary new self-regulatory standards for online behavioral advertising.  This cross-industry initiative is aimed at enhancing European consumers’ control over their data and ensuring transparency, particularly with respect to advertisements that are delivered using third party online behavioral advertising.

On April 18, 2011, the European Commission (the “Commission”) adopted an Evaluation Report on the EU Data Retention Directive 2006/24/EC (the “Data Retention Directive”).

The Data Retention Directive requires that, for law enforcement purposes, telecommunications service and network providers (“Operators”) must retain certain categories of telecommunications data (excluding the content of the communication) for not less than six months and not more than two years.  To date, most of the EU Member States have implemented the Data Retention Directive, but Czech Republic, Germany and Romania no longer have implementing laws in place because their constitutional courts have annulled the implementing laws as unconstitutional.

On April 5, 2011, the Article 29 Working Party (the “Working Party”) adopted an Opinion on the current EU personal data breach framework and recommendations for future policy developments (the “Opinion”).

In 2009, the revised e-Privacy Directive 2002/58/EC (the “e-Privacy Directive”) introduced a mandatory data breach notification regime for the telecommunications sector.  Pursuant to the e-Privacy Directive, telecommunications and internet service providers are required to report certain data breaches to their national regulator and to affected individuals.

On March 16, 2011, UK Information Commissioner Christopher Graham shared details of the government’s proposals for the implementation of the e-Privacy Directive with delegates at the Direct Marketing Association’s Data Protection Conference in London. A letter from the Minister for Culture, Communications and Creative Industries, Ed Vaizey, provides important reassurance to business that “Government is committed to introducing the amended provision in a way that minimises impacts to business and consumers.”

On March 8, 2011, the UK Information Commissioner’s Office (the “ICO”) issued a warning to UK businesses on the forthcoming amendments to the Privacy and Electronic Communications Directive (2002/58/EC as amended by 2009/136/EC) that will require businesses operating websites in the UK to obtain consent from website visitors to store information on their computers and retrieve that information in the form of cookies.

On March 2, 2011, the German Federal government adopted a draft law revising certain sector-specific data protection provisions in the German Telecommunications Act.  The draft law addresses the implementation of data breach notification requirements in the European e-Privacy Directive by introducing a breach notification obligation for telecommunications companies.

On February 18, 2011, the European Network and Information Security Agency (“ENISA”), an advisory body created to enhance information security in the EU, announced the issuance of its report on cookies, entitled “Bittersweet cookies.  Some security and privacy considerations.”

On January 14, 2011, the European Network and Information Security Agency (“ENISA”), which was created to enhance information security within the European Union, published a report entitled “Data breach notifications in the EU” (the “Report”).

Currently, there is wide debate throughout the EU regarding data breach notification requirements.  The debate stems from recent high-profile data breach incidents and the introduction of mandatory data breach notification requirements for telecommunication service providers imposed by EU Directive 2009/136/EC (amending EU Directive 2002/58/EC, the “e-Privacy Directive”), which must be integrated into EU Member States’ national laws by May 25, 2011.  The goal of the Report is to assist Member States, regulatory authorities and private organizations with their implementation of data breach notification policies.

On November 10, 2010, the American Bar Association’s Section of Antitrust Law’s International Committee and Corporate Counseling Committee hosted a webinar on “Regulating Privacy Across Borders in the Digital Age: An Emerging Global Consensus or Vive la Difference?”.  A panel of senior officials and private sector experts provided insights on emerging cross-border data privacy and security issues.  Hunton & Williams partner Lisa Sotto was tapped to moderate an outstanding panel which included Billy Hawkes, Commissioner, Office of the Data Protection Commissioner ...

On June 24, 2010, the Article 29 Working Party adopted Opinion 2/2010 (the “Opinion”) providing further clarification on online behavioral advertising.  The Working Party also issued a press release on this topic.  Although the scope of the Opinion is limited to online profiling, its interpretation of Article 5(3) of the amended e-Privacy Directive provides some useful clarifications regarding the legal framework applicable to online behavioral advertising and the use of cookies.  We provide a short analysis of the Opinion below.

Opt-in?  Browser setting as opt-in?  Opt-out?  The Opinion clarifies the Working Party’s interpretation of the new Article 5(3) and Recital 66 of the e-Privacy Directive.  According to the Working Party, Article 5(3) and Recital 66, along with the General Data Protection Directive (“Directive 95/46/EC”), require prior opt-in consent since “prior opt-in consent mechanisms are better suited to deliver informed consent.”

On May 12, 2009, the European Commission issued a long-awaited recommendation on the implementation of privacy and data protection principles in applications supported by radio-frequency identification (“RFID”).  The recommendation follows a process initiated in 2006 when the European Commission launched a public consultation on RFID technologies.  Following this public consultation and in order to protect consumers’ privacy and data protection, the European Commission decided to take further steps by preparing a recommendation to regulate the use of RFID.

On May 6, 2009, the proposed amendments to the e-Privacy Directive received a second reading in the European Parliament.  In addition to other measures, it will include a definition of “personal data breach” and will introduce a data breach notification requirement. 

The review of the e-Privacy Directive forms part of a wider review of telecoms legislation.  The objective of that review is to improve network security and integrity, to increase protection for user personal data and to improve measures to prevent spam and “cyber attacks.”  The scope of the amended Directive will include the processing of personal data in connection with the provision of publicly available electronic communications services in public communications networks within the European Community, including public communications networks supporting data collection and identification devices.