GDPR – Cyber Law Watch

ICO Introduces Consultation Series on Data Protection and Generative AI

Feb 13 2024

By Claude-Étienne Armingaud & Sophie Verstraeten

The Information Commissioner’s Office (ICO) recently launched a consultation series on how data protection laws should apply to the development and use of generative AI models (“Gen AI”). In the coming months, the ICO will publish further views on how to interpret specific requirements of UK GDPR and Part 2 of the DPA 2018 in relation to Gen AI. This first part of the consultation focusses on whether it is lawful to train Gen AI on personal data scraped from the web. The consultation seeks feedback from stakeholders with an interest in Gen AI.

UK’s top Websites Receive Cookie Warnings from the Information Commissioner

Dec 07 2023

By Claude-Étienne Armingaud and Sophie Verstraeten

The UK’s Information Commissioner (the “ICO”) has recently sent warnings to the UK’s most visited websites to inform them that they may face enforcement action if they do not make changes to their cookie banner to ensure compliance with UK data protection law. For example, some websites warned by the ICO do not provide their user with a fair choice on tracking for personalised advertising. This position aligns with the EU’s stance, noting France (see prior Alert here).

May 24 2023

By Noirin M. McFadden and Claude-Étienne Armingaud

Today, the UK data protection regulator, the ICO, has published guidance to assist employers in responding to data subject access requests (DSARs) from current and former employees. DSARs have become the primary tool for employees attempting to gain leverage against employers during a dispute or grievance process: they can be extremely time-consuming and resource intensive for employers to deal with, and it is a difficult balance to strike between upholding employees’ right of access under the UK GDPR and applying exemptions from disclosure in an appropriate way.

The new guidance covers issues that often occur when employers try to strike this balance, and notably:

Sep 16 2022

By Cameron Abbott, Stephanie Mayhew and Dadar Ahmadi-Pirshahid

Argentina’s Data Protection Authority, the Agency for Access to Public Information (the Agency), has published a draft bill that proposes to bring Argentina’s 22 year old data protection law more in line with the European Union’s General Data Protection Regulation.

Amongst other things, the bill modernises Argentina’s data protection law to deal with more recent issues including cloud computing, biometric and genetic data. It provides greater scope for international transfers of information by allowing transfers under the sanction of adequate data protection guarantees in the absence of a decision by the Agency that the importing country has adequate data protection. It additionally requires Data Controllers to document and notify the Agency of data breaches within 48 hours of becoming aware of a breach.

The draft bill is open for public comment until 30 September 2022. Any entity wishing to submit commentary is encouraged to reach out to K&L Gates to help facilitate the submission process.

UK Government publishes new proposed data protection law

Jul 27 2022

By Claude-Étienne Armingaud, Nóirín McFadden and Keisha Phippen

The UK Government has finally published its highly anticipated Data Protection and Digital Information Bill (the Bill), marking the first significant post-Brexit change to the UK’s data protection regime. Following Brexit, the UK continued following the EU General Data Protection Regulation, incorporated into UK law as the UK GDPR, and the UK implementation of the EU ePrivacy Directive, the Privacy and Electronic Communications Regulations 2003 (PECR), also remained in force.

The Bill is only at the start of the legislative process, and it remains to be seen how it will develop if it is amended during its passage through Parliament, but early indications are that it represents more of an evolution than a revolution in the UK regime. That will come as a relief to businesses that transfer personal data from the EU to the UK, because it reduces the risk that the EU might rescind the UK’s adequacy status.

For a start, the Bill actually preserves the UK GDPR, its enabling legislation the Data Protection Act 2018, and the PECR, because it is drafted as an amending act rather than a completely new legislative instrument. This does not contribute to user-friendliness, as interpreting UK data protection requirements will require a great deal of cross-referencing across texts.

The more eye-catching proposed changes in the Bill include:

The inclusion of a list of “legitimate interests” that will automatically qualify as being covered by the lawful basis in UK GDPR Article 6(e).
Some limitations on data subject access requests, such as the possibility of refusing “vexatious or excessive” requests.
More exemptions from the requirement to obtain consent to cookies.
Much higher fees for breach of PECR.

The Bill will now progress through various Parliamentary stages over the coming months in order to become law.

Queen’s speech heralds UK GDPR overhaul

May 25 2022

By Claude-Étienne Armingaud and Nóirín McFadden

In the Queen’s speech at the state opening of parliament on 10 May 2022, the UK government announced its intention to change the UK’s data protection regime in a new Data Reform Bill. This follows a consultation last Autumn on how the UK GDPR could be reformed following the UK’s exit from the European Union (EU).

The government claims that the new Bill would:

Create a data protection framework focused on “privacy outcomes” that would reduce the burdens on businesses, and a “clearer regulatory environment” to encourage “responsible innovation”.
Ensure that citizens’ data is “protected to a gold standard”, while enabling more efficient sharing of data between public bodies.
Modernise the Information Commissioner’s Office and require it to be “more accountable to Parliament and the public”.

The Queen’s speech also announced plans to replace the Human Rights Act 1998, which incorporated the European Convention on Human Rights into UK law. According to the government a new “Bill of Rights” would “end the abuse of the human rights framework and restore some common sense to [the] justice system”. This would be achieved by “establishing the primacy of UK case law”, which means that UK courts would no longer be required to follow the case law of the European Court of Human Rights.

Taken together, both of these proposed new legislative measures could change the balance of protection of individuals’ rights in the UK, both generally and in the specific area of personal data regulation. Their development will be closely watched by data protection professionals, because any significant changes in the UK data protection regime could prompt the EU to review its post-Brexit UK adequacy decision, potentially leading to the end of decades of seamless transfers of personal data from the EU to the UK.

EU-REPUBLIC OF KOREA ADEQUACY DECISIONS FINALIZED

Jan 14 2022

By Claude-Etienne Armingaud, Andrew L. Chung, Camille Scarparo and Eric Yoon

Following the conclusion of the adequacy talks in March 2021, the European Commission has adopted on 17 December 2021 an adequacy decision addressing the transfers of personal data to the Republic of Korea under the General Data Protection Regulation (GDPR) and the Law Enforcement Directive.

Both texts prohibit the transfer of personal data to “third countries” unless (a) the destination country benefits from (i) an adequacy decision or (ii) appropriate safeguards, such as standard contractual clauses (see our alert here) or codes of conduct (see our alert here); or (b) one of the limited derogations under Article 49 GDPR applies.

With regards to the adequacy talks, the Republic of Korea agreed on the implementation of additional safeguards. Accordingly, the reform of Republic of Korea’s data protection framework (the Personal Information Protection Act) in August 2020, implemented several additional safeguards including transparency provisions and enforcement power strengthening of the Personal Information Protection Commission (§70).

The Republic of Korea adequacy decision complements the Free Trade Agreement (FTA) of July 2011 and allows a seamless flow of personal data between the Republic of Korea and the European Union.

Unlike the UK adequacy decision which contains a sunset clause (see our alert here), the Republic of Korea adequacy decision is not limited in time. However, pursuant to Article 45.3 GDPR, the European Commission carry out a first review of the decision after three years to evaluate any evolution in the Republic of Korea data protection framework, that would lead to divergence with the EU regulations (§220).

The Republic of Korea now belongs to the increasing group of third countries benefiting from an adequacy decision (including, since GDPR’s entry into force, Japan and the UK).

The firm’s global data protection team (including in each of our European offices) remains available to assist you in achieving the compliance of your data transfers at global levels.

New GDPR Guidelines on Data Transfers

Dec 01 2021

Claude-Étienne Armingaud, Camille Scarparo and Bastien Pujol

On 19 November 2021, the European Data Protection Board (“EDPB”) adopted new guidelines on the interplay between Article 3 GDPR (territorial scope) and Chapter V GDPR (transfer of personal data to third countries or international organization) of the General Data Protection Regulation (“GDPR”).

Those draft Guidelines aim at clarifying the mechanism of international transfers and more specifically provide a necessary assistance to controllers and processors in the European Union (“EU”) or otherwise subject to GDPR, including guidance on when a data importer would be subject to GDPR and an interpretation of the concept of international transfer.

In order to characterize a processing as a “transfer”, the EDPB relied on the three following cumulative criteria:

The data exporter (a controller or processor) is subject to the GDPR for the given processing;
- As a reminder, while GDPR generally applies to all entities processing personal data and established in the EU, it can also have an extra territorial reach for certain processing operations consisting in (i) offering products or services to individuals in the EU (e.g. ecommerce and apps) or (ii) monitoring of EU individuals’ behavior taking place in the EU (e.g. cookies and other tracking technologies).
The data exporter transmits or makes available the personal data to the data importer (another controller, joint-controller or processor); and
- In that regard, the mere remote access to the data would still qualify as a “data transfer” and it remains to be hopefully clarified in the final Guidelines whether the sharing of personal data among joint-controllers (both subject to GDPR from the inception of the processing operations) would in and of itself be considered as a data transfer.
The data importer is in a third-country or is an international organization.

In addition, a processing that meets these three criteria will be considered a transfer when the importer is established in a third-country and subject to the GDPR following provisions of article 3.2 GDPR. The EDPB considered that when the controller located in a third-country is already subject to GDPR, “less protection/safeguards are needed”. Nevertheless, conflicting national laws, government access in the third-country as well as the difficulty to enforce and obtain redress against an entity outside the EU should be addressed when developing relevant transfer tools.

The EDPB specified that personal data directly collected from the data subjects, at their own initiative, should not to be considered as a transfer.

An online public consultation is opened on the matter until 31 January 2022.

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