Privacy & Information Security Law Blog

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

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

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

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of Man, Israel, Jersey, New Zealand, Switzerland and Uruguay) that benefit from Adequacy Decisions adopted under the repealed Directive 95/46/EC still offer sufficient guarantees to maintain adequacy status under the EU General Data Protection Regulation (“GDPR”).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

On December 12, 2022, at the “POLITICO Live” event presented in cooperation with Hunton Andrews Kurth LLP’s Centre for Information Policy Leadership ("CIPL")—titled “EU-U.S. Data Flows: Game Changer or More Legal Uncertainty?”—featured speakers from both sides of the Atlantic optimistic that the new EU-U.S. Data Privacy Framework will withstand an anticipated legal challenge.

On November 1, 2022, the Digital Markets Act (the “DMA”) entered into force. The DMA introduces new rules for certain core platforms services acting as “gatekeepers” in the digital sector (including search engines, social networks, online advertising services, cloud computing, video-sharing services, messaging services, operating systems and online intermediation services). The DMA also aims to prevent such platforms from imposing unfair conditions on businesses and consumers, and to ensure the openness of important digital services.

On  November 2, 2022, the ICO issued to the UK Department for Education (“DfE”) a formal reprimand following an investigation into the sharing of personal data stored on the Learning Records Service (“LRS”), a database which provides a record of pupils’ qualifications that the DfE has overall responsibility for. The investigation found that the DfE’s poor due diligence meant the LRS database was being used by Trust Systems Software UK Ltd (trading as Trustopia), a third party screening firm, to check whether people opening online gambling accounts were 18. Trustopia was found to have had access from September 2018 to January 2020, during which it performed over 20,000 searches on children whose personal data was in the LRS database.

On October 18, 2022, the European Commission published a report, titled Information Frictions and Public Policies: Approaching the Regulation and Supervision of Decentralized Finance (“DeFi”) (the “Report”). The Report discusses the need to adapt existing policy frameworks to account for the change brought about by DeFi to the underlying information structure upon which financial services are provided. Unlike traditional finance, DeFi applications provide financial services based on blockchain technology, i.e., without requiring any intermediary agent and instead relying on automated protocols that are encoded in public digital contracts universally accessible and maintained by an open pool of pseudonymous miners.

On October 7, 2022, President Biden signed Executive Order on Enhancing Safeguards for United States Signals Intelligence Activities, which provides a new framework for legal data transfers between the European Union and the United States. The legal basis for transatlantic data transfers has been uncertain since 2020, when the European Court of Justice (“ECJ”) declared the previous framework, the EU-U.S. Privacy Shield, invalid under EU law. 

Background

On September 15, 2022, the European Commission presented its proposal for a Regulation on horizontal cybersecurity requirements for products with digital elements (the “Cyber Resilience Act”). According to the European Commission, the Cyber Resilience Act will be the first EU-wide legislation introducing “cybersecurity requirements for products with digital elements, throughout their whole lifecycle.”

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 April 23, 2022, the European Commission announced that the European Parliament and EU Member States had reached consensus on the Digital Services Act (“DSA”), which establishes accountability standards for online platforms regarding illegal and harmful content.

On April 7, 2022, the European Data Protection Board (the “EDPB”) released a statement on the announcement of a new Trans-Atlantic Data Privacy Framework (the “Statement”).

On March 24, 2022, the European Union unveiled the final text of the Digital Markets Act (the “DMA”). The final text of the DMA was reached following trilogue negotiations between the European Commission, European Parliament and EU Member States (led by the French Presidency at the European Council). The final text retains essentially the same features as the previous draft text but does include some notable changes.

On March 25, 2022, the European Commission and United States issued a joint statement announcing an agreement in principle on a new Trans-Atlantic Data Privacy Framework (the “Joint Statement”).

On February 23, 2022, the European Commission adopted a Proposal for a Regulation designed to harmonize rules on the fair access to and use of data generated in the EU across all economic sectors (the “Data Act”). The Data Act is intended to “ensure fairness in the digital environment, stimulate a competitive data market, open opportunities for data-driven innovation and make data more accessible for all.” Importantly, the Data Act applies to all data generated in the EU, not only personal data, which is regulated by the General Data Protection Regulation (“GDPR”).

On February 2, 2022, the Secretary of State placed the UK Information Commissioner’s Office's (“ICO's ”) final international data transfer agreement (“IDTA”) and international data transfer addendum to the European Commission’s standard contractual clauses (“SCCs”) for international data transfers (“Addendum”) before the European Parliament. The IDTA and Addendum are set to come into force on March 21, 2022, but the ICO advises that they are of use to organizations immediately. The ICO also has stated that it intends to publish additional guidance on use of the IDTA and Addendum.

View the ICO’s final drafts of the IDTA and Addendum.

In a letter addressed to certain members of the European Parliament (“MEPs”), European Commissioner for Justice Reynders refuted some of the criticism that has been raised against the Irish Data Protection Commissioner (“DPC”).

On December 15, 2021, the European Parliament adopted its position on the proposal for a Digital Markets Act (“DMA”), ahead of negotiations with the Council of the European Union.

The DMA introduces new rules for certain core platforms services acting as “gatekeepers,” (including search engines, social networks, online advertising services, cloud computing, video-sharing services, messaging services, operating systems and online intermediation services) in the digital sector and aims to prevent them from imposing unfair conditions on businesses and consumers and to ensure the openness of important digital services.

On December 17, 2021, the European Commission announced that it had adopted its adequacy decision on the Republic of Korea. The adequacy decision allows for the free flow of personal data between the EU and Korea, without any further need for authorization or additional transfer tool. The adequacy decision also covers transfers of personal data between public authorities.

On December 6, 2021, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth LLP published a white paper on “Bridging the DMA and the GDPR – Comments by the Centre for Information Policy Leadership on the Data Protection Implications of the Draft Digital Markets Act” (the “White Paper”).

On November 30, 2021, the European Commission issued a press release indicating that the European Parliament and the Council of the EU (i.e., representatives of EU Member States) reached political agreement on the proposed EU Data Governance Act. The political agreement now will be subject to final approval by the European Parliament and the Council of the EU.

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 September 27, 2021, the European Data Protection Board (“EDPB”) announced that it had adopted an opinion on the European Commission’s draft adequacy decision for the Republic of Korea (the “Opinion”).

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 July 29, 2021, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted its response to the European Commission’s Consultation on the Draft Artificial Intelligence Act (the “Act”). Feedback received as part of this consultation will feed into discussions with the European Parliament and the European Council as the proposal makes its way through the EU legislative process.

On June 28, 2021, the European Commission (the “Commission”) adopted two adequacy decisions for the United Kingdom, one under the General Data Protection Regulation (“GDPR”) and another under the Law Enforcement Directive. Their adoption means organizations in the EU can continue to transfer personal data to organizations in the UK without restriction, and will not need to rely upon data transfer mechanisms, such as the EU Standard Contractual Clauses, to ensure an adequate level of protection. The adoption comes just before the conditional interim regime under the EU-UK Trade and Cooperation Agreement, under which data could flow freely from the EU to the UK, was set to expire on June 30, 2021.

On June 11, 2021, the Belgian Data Protection Authority (“Belgian DPA”) released its 2020 Annual Report (the “Report”). Notably in 2020, the Belgian DPA focused on the supervision of initiatives to fight the COVID-19 pandemic involving data processing, while not losing sight of its other priorities, as identified in its Strategic Plan 2020-2025.

Due to the increased awareness of the importance of the protection of personal data, 2020 had a significant increase in the number of complaints, which were up 290.64%, and data breach notifications, which were up 25.09%, received by the Belgian DPA.

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.

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.

On May 11, 2021, the European Parliament issued a press release requesting that the European Commission amend its draft decisions on UK adequacy to more closely align with EU court rulings and the opinion of the European Data Protection Board (“EDPB”). The request came after the Parliament’s Civil Liberties Committee (the “Committee”) passed a resolution evaluating the Commission’s approach regarding the adequacy of the UK’s data protection regime. The Members of European Parliament (“MEPs”) stated that if the Commission’s implementing decisions are adopted without amendment, transfers of personal data to the UK should be suspended when there is the potential for indiscriminate access to personal data.

On April 21, 2021, the European Commission (the “Commission”) published its Proposal for a Regulation on a European approach for Artificial Intelligence (the “Artificial Intelligence Act”). The Proposal follows a public consultation on the Commission’s white paper on AI published in February 2020. The Commission simultaneously proposed a new Machinery Regulation, designed to ensure the safe integration of AI systems into machinery.

On April 14, 2021, the European Data Protection Board (“EDPB”) announced that it had adopted its Opinion on the draft UK adequacy decision issued by the European Commission on February 19, 2021. The EDPB’s Opinion is non-binding but will be persuasive. The adequacy decision will be formally adopted if it is approved by the EU Member States acting through the European Council. If the adequacy decision is adopted, transfers of personal data from the EU to the UK may continue following the end of the post-Brexit transition period without the implementation of a data transfer mechanism under the EU General Data Protection Regulation (“GDPR”), such as Standard Contractual Clauses.

On March 25, 2021, the Centre for Information Policy Leadership at Hunton Andrews Kurth organized an expert roundtable on the EU Approach to Regulating AI–How Can Experimentation Help Bridge Innovation and Regulation? (the “Roundtable”). The Roundtable was hosted by Dragoș Tudorache, Member of Parliament and Chair of the Artificial Intelligence in the Digital Age (“AIDA”) Committee of the European Parliament.  The Roundtable gathered industry representatives and data protection authorities (“DPAs”) as well Axel Voss, Rapporteur of the AIDA Committee.

On March 30, 2021, the European Commission (the “Commission”) announced the successful conclusion of the adequacy talks with the Republic of Korea.

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.

On February 19, 2021, the European Commission published a draft data protection adequacy decision relating to the UK. If the draft decision is adopted, organizations in the EU will be able to continue to transfer personal data to organizations in the UK without restriction, and will not need to rely upon data transfer mechanisms, such as the EU Standard Contractual Clauses, to ensure an adequate level of protection.

On February 10, 2021, the European Data Protection Supervisor (“EDPS”) published two opinions on the European Commission’s proposals for a Digital Services Act (“DSA”) and a Digital Markets Act (“DMA”). The proposed DSA and DMA are part of a set of measures announced in the 2020 European Strategy for Data and have two main goals: (1) creating a safer digital space in which the fundamental rights of all users of digital services are protected, and (2) establishing a level playing field to foster innovation, growth and competitiveness in the European Single Market and globally.

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 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 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”). 

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).

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.

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.

On November 24, 2020, the European Parliament endorsed the new directive on representative actions for the protection of the collective interests of consumers (the “Collective Redress Directive”). The Collective Redress Directive requires all EU Member States to put in place at least one effective procedural mechanism allowing qualified entities to bring representative actions to court for the purpose of injunction or redress. The Collective Redress Directive was presented in April 2018 by the European Commission and is part of the European Commission’s New Deal for Consumers. The Collective Redress Directive was proposed as a response to several scandals related to breaches of consumers’ rights by multinational companies.

On November 12, 2020, somewhat in the shadow of the new standard contractual clauses for data transfers to recipients outside the European Economic Area (“EEA”), the European Commission also adopted draft standard contractual clauses to be used between controllers and processors in the EEA (“EEA Controller-Processor SCCs”).

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”).

On September 3, 2020, the Committee on Civil Liberties, Justice and Home Affairs (“LIBE Committee”) of the European Parliament held a meeting to discuss the future of EU-U.S. data flows following the Schrems II judgment of the Court of Justice of the European Union (the “CJEU”). In addition to Members of the European Parliament (“MEPs”), the meeting’s participants included Justice Commissioner Didier Reynders, European Data Protection Board (“EDPB”) Chair Andrea Jelinek and Maximilian Schrems. Importantly, Commissioner Reynders stated during the meeting that the new Standard Contractual Clauses (“SCCs”) might be adopted by the end of 2020, at the earliest.

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).

On August 10, 2020, European Commissioner for Justice Didier Reynders and U.S. Secretary of Commerce Wilbur Ross released a joint press statement (the “Statement”) following the ruling of the Court of Justice of the European Union (“CJEU”) in the Schrems II case.

On July 9, 2020, the European Commission (the “Commission”) adopted a Communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions entitled: “Getting ready for changes – Communication on readiness at the end of the transition period between the European Union and the United Kingdom” (the “Communication”).

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).

On June 25, 2020, the European Commission launched a public consultation on the revision of the Directive on Security of Network and Information Systems (the “NIS Directive”). According to the Commission, a revision is needed because cybersecurity capabilities in EU Member States remain unequal despite progress made with the NIS Directive, and the level of protection in the EU is insufficient. In addition, the rapid digitalization of society has expanded the threat landscape and presents new challenges requiring adaptive and innovative responses.

On June 11, 2020, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted its response (the “Response”) to the European Commission’s consultation regarding its white paper on “a European Approach to Excellence and Trust” on artificial intelligence (the “White Paper”).

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 28, 2020, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth LLP submitted formal comments to the European Commission’s consultation on its roadmap for the two-year evaluation of the EU General Data Protection Regulation (“GDPR”) (the “Response”).

On April 21, 2020, the European Data Protection Board (“EDPB”) adopted Guidelines on the processing of health data for scientific purposes in the context of the COVID-19 pandemic. The aim of the Guidelines is to provide clarity on the most urgent matters relating to health data, such as legal basis for processing, the implementation of adequate safeguards and the exercise of data subject rights.

On April 14, 2020, the European Data Protection Board (“EDPB”) adopted a letter concerning the European Commission's (the “Commission”) draft Guidance on apps supporting the fight against the COVID-19 pandemic. This letter was written to the Commission following the Commission’s adoption of a recommendation to develop a common European approach to using mobile applications and mobile location data in response to the pandemic on April 8, 2020.

On April 7, 2020, the European Data Protection Board (the “EDPB”) announced that it had assigned mandates to its expert subgroups to develop guidance on several aspects of data processing amidst the COVID-19 crisis.

On April 8, 2020, the European Commission adopted a recommendation to develop a common European approach to using mobile applications and mobile location data in response to the coronavirus pandemic (the “Recommendation”).

On March 19, 2020, the European Data Protection Board (“EDPB”) published a new statement regarding processing personal data in the context of the COVID-19 outbreak. The EDPB said that emergency is a legal condition which may legitimize restrictions of individual freedoms, provided that these restrictions are proportionate and limited to the emergency period. Several considerations come into play in weighing the lawful processing of personal data in these circumstances.

On February 24, 2020, the European Data Protection Board (“EDPB”) published general policy messages and a synthesis of the contributions and replies by its members - national data protection authorities (“DPAs”) - to the Questionnaire on the Evaluation of the EU General Data Protection Regulation (“GDPR”) sent by the European Commission (the “Contribution”).

On February 19, 2020, the European Commission (“the Commission”) published a White Paper entitled “a European Approach to Excellence and Trust” on artificial intelligence (“AI”). This followed an announcement in November 2019, from the Commission’s current President, Ursula von der Leyen, that she intended to propose rules to regulate AI within the first 100 days of her Presidency, which commenced on December 1, 2019. This White Paper was published alongside the Commission’s data and digital strategies for Europe.

On February 19, 2020, the European Commission (the “Commission”) released a suite of documents including its White Paper on Artificial Intelligence (“AI”), entitled “a European approach to excellence and trust.” In addition, the Commission published two communications—its European strategy for data and a Digital Strategy document entitled “Shaping Europe’s Digital Future.”

On December 19, 2019, the members of the Permanent Representations of EU Member States to the Council of the European Union (“the Council”) published a draft position on the application of the General Data Protection Regulation (“GDPR”). After the draft position has been formally adopted by the Council, it will be provided to the European Commission. This is part of the GDPR evaluation process under Article 97 of the GDPR, which requires the European Commission to publish a report on the evaluation and review of the GDPR by May 25, 2020.

On August 7, 2019, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth LLP issued a white paper titled Key Issues Relating to Standard Contractual Clauses for International Transfers and the Way Forward for New Standard Contractual Clauses under the GDPR (the “White Paper”). The White Paper was submitted to the European Commission as part of its ongoing work to update EU Standard Contractual Clauses for international transfers (“SCCs”).

On July 9, 2019, the hearing in the so-called Schrems II case (case C-311/18) took place at the Court of Justice of the European Union (“CJEU”) in Luxembourg. The main parties involved in the proceedings, the Irish Data Protection Commissioner (“Irish DPA”), Facebook Ireland Ltd. and the Austrian activist Max Schrems, presented their arguments to the court. In addition, a number of other stakeholders intervened during the hearing, including representatives of the European Parliament, the European Commission, the European Data Protection Board, several EU Member States (including Austria, France, Germany, Ireland, the Netherlands and the UK) and the U.S. government, as well as a number of industry lobby groups and the Electronic Privacy Information Center.

On July 4, 2019, the European Commission published a factsheet on artificial intelligence (“AI”) for Europe (the “Factsheet”). In the Factsheet, the European Commission underlines the importance of AI and its role in improving people’s lives and bringing major benefits to the society and economy. In addition, the Factsheet also describes the EU’s role in AI and the financial investments the Commission is planning to make in AI. The factsheet also includes some examples of projects conducted by the Commission in AI (including in agriculture, data and eHealth, public administration and services, and transport and manufacturing).

To mark the GDPR’s one-year anniversary, the European Commission recently published the results of two surveys meant to illuminate the public’s awareness of the GDPR and its practical applications.

On June 20, 2019, the Senate confirmed Keith Krach as Under Secretary of State for Economic Growth, Energy, and Environment. The former DocuSign and Ariba CEO, nominated by President Trump in January of 2019, will function as the permanent ombudsperson for the EU-U.S. Privacy Shield agreement as part of his role, addressing complaints related to U.S. protection of EU data.

On June 12, 2019, Hunton Andrews Kurth and its Centre for Information Policy Leadership (“CIPL”) hosted a roundtable discussion in the firm’s Brussels office on the update of the EU Standard Contractual Clauses for international data transfers (“SCCs”). More than 30 privacy leaders joined together to discuss the challenges of the current SCCs and provide their insights on the updated versions. Hunton partner David Dumont led the discussion, while CIPL President Bojana Bellamy illuminated CIPL’s work in this area. The session also featured Cristina Monti, Policy Officer in the International Data Flows and Protection Unit of the EU Commission DG Justice and Consumers.

The European Commission (the “Commission”) has released a long-awaited study on GDPR data protection certification mechanisms (the “Study”). As we previously reported, the Commission announced its intention to look into GDPR certifications in January of 2018.

On April 8, 2019, the European Commission High-Level Expert Group (the “HLEG”) on Artificial Intelligence released the final version of its Ethics Guidelines for Trustworthy AI (the “Guidelines”). The Guidelines’ release follows a public consultation process in which the HLEG received over 500 comments on its initial draft version. The Centre for Information Policy Leadership at Hunton Andrews Kurth LLP contributed its own comments during this process.

On March 12, 2019, the European Parliament (“Parliament”) approved the proposal for a regulation of the European Parliament and of the Council on ENISA, and repealing Regulation (EU) 526/2013, and on Information and Communication Technology cybersecurity certification (collectively, the “Cybersecurity Act”). The Parliament’s approval follows a political agreement between the European Commission, the Parliament and the Council of the European Union (“Council”) reached last December.

The Cybersecurity Act aims to achieve a high level of cybersecurity and cyber resilience, and to promote individuals’ trust in the EU digital single market.

On January 23, 2019, the European Data Protection Board (“EDPB”) released an opinion on the interplay between the European Clinical Trials Regulation (“CTR”) and the EU General Data Protection Regulation (“GDPR”) (the “Opinion”). The Opinion was requested by the European Commission Directorate-General for Health and Food Safety (“DG SANTE”).

On January 22, 2019, the European Data Protection Board (“EDPB”) issued a report on the Second Annual Review of the EU-U.S. Privacy Shield (the “Report”). Although not binding on EU or U.S. authorities, the Report provides guidance to regulators in both jurisdictions regarding implementation of the Privacy Shield and highlights the EDPB’s ongoing concerns with regard to the Privacy Shield. We previously blogged about the European Commission’s report on the second annual review of the Privacy Shield, and the joint statement of the European Commission and Department of Commerce regarding the second annual review.

On December 29, 2018, the UK Information Commissioner’s Office announced that Elizabeth Denham, UK Information Commissioner, was awarded a CBE for her services to protecting information. Denham’s award was announced in the United Kingdom’s 2019 New Year’s Honours list. This honor reflects Denham’s achievements as the UK Information Commissioner and the enhanced leadership, visibility and impact that she has brought to the role and the Office.

On January 23, 2019, the European Commission announced that it has adopted its adequacy decision on Japan (the “Adequacy Decision”). According to the announcement, Japan has adopted an equivalent decision and the adequacy arrangement is applicable with immediate effect.

On December 20, 2018, the Department of Commerce updated its frequently asked questions (“FAQs”) on the EU-U.S. and Swiss-U.S. Privacy Shield Frameworks (collectively, the “Privacy Shield”) to clarify the effect of the UK’s planned withdrawal from the EU on March 29, 2019. The FAQs provide information on the steps Privacy Shield participants must take to receive personal data from the UK in reliance on the Privacy Shield after Brexit.

The European Commission (“Commission”), the European Parliament (“Parliament”) and the Council of the European Union reached an agreement earlier this month regarding changes to the Proposal for a Regulation on ENISA, the “EU Cybersecurity Agency”, and repealing Regulation (EU) 526/2013, and on Information and Communication Technology Cybersecurity Certification (the “Cybersecurity Act”). The agreement empowers the EU Cybersecurity Agency (known as European Union Agency for Network and Information and Security, or “ENISA”) and introduce an EU-wide cybersecurity certification for services and devices.

On December 19, 2018, the European Commission (the “Commission”) issued a press release regarding the publication of the Commission’s second annual review of the functioning of the EU-U.S. Privacy Shield (the “Report”).

On November 9, 2018, the European Commission (“the Commission”) submitted comments to the U.S. Department of Commerce’s National Telecommunications and Information Administration (“NTIA”) in response to its request for public comments on developing the administration’s approach to consumer privacy.

On September 5, 2018, the European Commission (the “Commission”) announced in a press release the launch of the procedure to formally adopt the Commission’s adequacy decision with respect to Japan.