CJEU delivers judgment on applicable data protection law

On 28 July 2016, the Court of Justice of the EU (CJEU), in VKI v Amazon EU Sárl (Case C-191/15) reconfirmed its earlier decision in Weltimmo (C-230/14) regarding the test for applicable law in relation to data processing activities.

The CJEU held that the processing of personal data by an undertaking engaged in electronic commerce is governed by the law of the Member State to which it directs its activities, if the undertaking carries out the data processing in question "in the context of the activities" of an establishment situated in that Member State.  It is for the national court to determine whether that is the case.  The fact that the undertaking does not have a branch or subsidiary in that Member State does not preclude it from having an establishment there.  The degree of stability of the arrangements and the effective exercise of activities in the Member State in question must be assessed. 

The CJEU also held that a standard term choosing a seller or supplier's law as governing law is unfair within the meaning of the Unfair Consumer Contracts Directive (93/13/EEC).  As a result companies will need to consider whether their standard choice of law clauses in Business to Consumer contracts are unfair and therefore invalid.

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Advocate General advises that obligation to retain data imposed by a Member State on electronic communications service providers may be compatible with EU law

The Advocate General has given his Opinion in a case concerning the interpretation to be given in a national context to the judgment of the Court of Justice of the EU (CJEU) in 2014 in Digital Rights Ireland (which found the EU Data Retention Directive to be invalid). The Advocate General found that an obligation to retain data imposed by a Member State on providers of electronic communication services may be compatible with EU law, subject to strict requirements.

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Privacy Shield - Not likely to be challenged by EU DPAs for at least one year

The Article 29 Working Party (WP29) has issued a Press Release indicating it still has concerns about the Privacy Shield.  However it appears that the WP29 (consisting of representatives of the EU Data Protection Authorities) will refrain from challenging the Privacy Shield until after mid-2017. 

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Court of Appeal confirms jurisdiction to order ISPs to take action against copyright infringement

On 28th July 2016, the Irish Court of Appeal, in Sony Music Entertainment (Ireland) Ltd. & Ors v UPC Communications Ireland Ltd. [2016] IECA 231, confirmed that national courts have jurisdiction to grant graduated response system (GRS) injunctions against innocent intermediaries, such as ISPs, in response to alleged copyright infringement. This is the first GRS order of its kind made anywhere in the EU. 

The Court held that Article 8(3) of the Information Society Directive (2001/29/EC) (the 2001 Directive), implemented in Ireland by section 40(5A) of the Copyright and Related Rights Act 2000, provided the jurisdiction to grant such orders. Article 8(3) requires Member States to ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.

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ICO states that GDPR is still relevant for the UK

Following the Brexit Referendum and the uncertainty now surrounding the future of data flows between the UK and the remaining EEA States, the UK Information Commissioner's Office has published an update on its blog: "GDPR still relevant for the UK". The update emphasises the importance of the GDPR to many organisations in the UK and notes:

"With so many businesses and services operating across borders, international consistency around data protection laws and rights is crucial both to businesses and organisations, and to consumers and citizens. The ICO’s role has always involved working closely with regulators in other countries, and that will continue to be the case. Having clear laws with safeguards in place is more important than ever given the growing digital economy, and we will be speaking to government to explain our view that reform of UK data protection law remains necessary."

For further guidance and analysis on the impact of Brexit for businesses and investors in both Ireland and Northern Ireland, please see our website here.

High Court finds brand survey evidence unreliable

In 2013, Mr Justice Gilligan refused an injunction sought by Galway Free Range Eggs Limited restraining Hillsbrook Eggs Limited from packaging or promoting their products under the name “O’Brien’s of Galway Free Range Eggs". The Court held that it was not satisfied that the packaging used by the defendant was likely to deceive the public but did accept that there were issues to put forward to trial.

The substantive High Court hearing was held recently before Mr Justice Tony O'Connor and one of the bigger issues before the Court was the use of survey evidence and the weight to be attached to such opinion evidence.   The Court was highly sceptical of the value of market opinions and related questionnaires and stated that in this specific case "the evidence offered on behalf of the plaintiff concerning brand confusion was tenuous and unreliable".

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Microsoft wins landmark US appeal against search warrant for emails stored in Ireland

The US Second Circuit Court of Appeals, overturning an earlier court ruling from a lower court, has held that the US Government cannot compel Microsoft to hand over emails stored on a server in Dublin in a narcotics case. The decision is a milestone victory for privacy rights and will be greatly welcomed by US technology companies storing data abroad. It should also provide reassurance to European citizens that their data will be protected by European data protection laws and the US legal system will respect their privacy rights.

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European Commission Adopts Privacy Shield

The European Commission has today adopted the Privacy Shield.  The Privacy Shield is intended to provide a framework for EU-US data transfers.

What is the Privacy Shield?

European data protection law restricts the transfer of personal data outside the European Economic Area (EEA) unless the country to which the data is transferred ensures an adequate level of data protection. The Privacy Shield is a mechanism for overcoming this restriction and legitimising the transfer of personal data to some US companies.

Why do we need the Privacy Shield?

Until 6 October 2015, over 4,000 US companies relied on the Safe Harbour regime to legitimise the transfer of personal data to the US.  The Safe Harbour regime was declared invalid by the Court of Justice of the EU (CJEU) on 6 October 2015.  The Privacy Shield will replace the Safe Harbour regime.

After the CJEU's ruling many US companies turned to the Model Contractual Clauses to legitimise their transatlantic data transfers.  The approval of the Privacy Shield will be welcomed by multinational companies, particularly as the Irish Data Protection Commissioner recently sought a referral to the CJEU to determine the legal status of data transfers under Model Contractual Clauses. However, Model Contractual Clauses remain a valid method of transatlantic transfer unless declared invalid by the CJEU, which may not be determined for up to another two years.

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Member States approve Privacy Shield

On 8 July 2016, Member State representatives (the Article 31 Committee) approved the final version of the EU-U.S. Privacy Shield, to permit transatlantic transfers of personal data from the EU to the U.S.  The Privacy Shield will replace the invalid Safe Harbour Agreement, to ensure high standards of data protection for transatlantic transfers of data for commercial purposes.

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Trade Secrets Directive- 5 July 2016

Following its publication in the Official Journal of the European Union, the EU Trade Secrets Directive (2016/943)on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure will enter in to force on the 5 July 2016. Member States will have two years from this date to implement the provisions of the Directive into national law.

Council of Europe adopts the NIS Directive

On 17 May 2016, the Council of Europe formally adopted the Network and Information Security (NIS) Directive, a Commission proposal in response to increasing concerns about cyber-attacks and privacy breaches.

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Nowak v. The Data Protection Commissioner: Data subjects' right of appeal and testing the boundaries of "personal data"

Under Section 26 of the Data Protection Acts 1988 and 2003, an appeal before the courts is provided for against a decision of the Data Protection Commissioner in relation to a complaint under Section 10(1)(a) of the Acts. The scope and applicable review standard for such an appeal was one of two key issues which came before the Supreme Court in the recent case of Nowak v. The Data Protection Commissioner (Judgment of O'Donnell J delivered on 28th April 2016).

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UK High Court endorses Predictive Coding (Part II)

The High Court in the UK has again endorsed the use of predictive coding, ruling it as being the most appropriate and proportionate approach to disclosure despite disagreement between the parties surrounding its use. In a previous blog, we outlined how the UK High Court in the Pyrrho case ruled that predictive coding was appropriate to discharge a parties obligations regarding electronic disclosure.

In the most recent judgment, (yet to be published), the concept of using predictive coding in a disclosure exercise was strongly contested. Berwin Leighton Paisner acting for the respondent note that the petitioner’s solicitors wished to adopt a “traditional” approach to document review, where the inboxes of an agreed a list of custodians would be filtered using an agreed list of search terms, and the responsive documents would be subject to a manual review.  It was put to the court that the costs of the traditional approach would be excessive, and that superior results could be achieved at a more proportionate cost using predictive coding.

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Can you keep a (trade) secret?

The European Council was yesterday due to adopt the directive on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure ("Trade Secrets Directive"), following a vote by the European Parliament on 15 April 2016.  This was following a long legislative process which began with a draft directive in 2013. 

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New Guidance On Whether Hyperlinking May Constitute Copyright Infringement

Under the Copyright Directive (2001/29/EC) the owner of copyright material has the exclusive right to control any "communications to the public" of their protected works.

In an advisory opinion to the Court of Justice of the European Union ("CJEU"), Attorney General Wathelet (the "AG"), recently considered whether the act of posting a hyperlink directing users to infringing content on a third party website would give rise to copyright infringement.

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