The Conseil d’État, France’s highest administrative court, recently ruled that personal data collected via a platform managed by Doctolib, and hosted by an EU subsidiary of a US-based company (subject to US surveillance laws), was in line with the GDPR. The ruling is an important follow-up to Schrems II.
The Bavarian Data Protection Authority (DPA) recently ruled that a German publisher should cease using a US-based email marketing platform to send newsletters to its subscribers. The Bavarian DPA found that transfers of email addresses of EU subscribers by the German publisher to the US-based platform to be unlawful. When using the platform, the German publisher relied on the Standard Contractual Clauses (SCCs) for its data transfers from Germany to the US.
The European Data Protection Board (EDPB) recently responded to questions submitted by the EU Commission seeking clarification on the consistent application of the GDPR to health research. The responses cover 21 questions and provide clarity on issues such as: the legal basis for processing health data; processing of special categories of data on a large scale; and further processing of previously collected health data. While it is clear that many questions remain unanswered, further responses are expected in forthcoming guidance currently being prepared by the EDPB.
The Data Protection Commission (DPC) has published its Annual Report for 2020. The Report looks back on the span of regulatory work completed by the DPC over the past year, and reveals some interesting trends and statistics. It discusses the complaints and breach notifications received; case-studies; the 83 domestic and cross-border inquiries it has open; and the fines, reprimands, and compliance orders it has issued for infringements of the GDPR and Law Enforcement Directive (LED). This briefing note considers some of the key highlights of the Report.
The UPC has faced continuous obstacles delaying its implementation. As matters stand, 15 contracting Member States have already ratified, including France and Italy. Once German ratification is complete it is anticipated that the final steps could be taken to set up the UPC in 2021 (with work likely starting in 2022), but more delays are now expected. In late December 2020, the German Parliament passed the ratification bill for the UPC Agreement but that was swiftly followed by the filing of two constitutional complaints with Federal Constitutional Court which delays the German process again.
Once up and running the UPC will replace all individual enforcement courts in different EU member states, enabling inventors and patent owners to enforce their patents across Europe. There will no longer be a requirement for multi-jurisdictional patent disputes, which has forced patent owners to litigate costly and complex issues throughout several European jurisdictions simultaneously.
On 1 January 2021, the Trade and Co-operation Agreement (TCA) came into force and the general principles of EU law, existing EU treaties and EU free movement rights ceased to apply in the UK, after the transition period set out in the Withdrawal Agreement ended on 31 December 2020. Under the European Union (Withdrawal) Act 2018, EU regulations only continue to apply in the UK to the extent that they have not been modified or revoked by regulations under that Act.
The TCA itself had very little impact on IP rights – it provides minimum measures for IP protection with scope for implementing stricter measures. The minimum measures have already been implemented in the UK and EU. Under the TCA, intellectual property rights (IPRs) (both registered and unregistered) will continue to be protected to at least the standards required by the international agreements which the UK and EU are both parties to, and, in many cases, to a higher standard.
The EU Commission looks set to adopt two adequacy decisions in favour of the UK, which will allow businesses to continue to freely transfer personal data from the EU/EEA to the UK. On 19 February 2021, the EU Commission published two draft adequacy decisions permitting transfers of personal data to the UK under the GDPR, and under the Law Enforcement Directive (LED).
Once adopted, the decisions will replace the interim solution agreed under the EU-UK Trade and Cooperation Agreement (previously discussed here). That agreement allows businesses to transfer personal data from the EU/EEA to the UK, without putting in place additional safeguards, until 30 June 2021 or an adequacy decision comes into effect, whichever is sooner.
The EU Commission will next obtain an opinion from the EDPB. It will then need to obtain the green light from a committee of representatives of the EU Member States. Once this procedure is completed, the EU Commission may adopt the UK adequacy decisions. In line with Article 45(3) of the GDPR and Article 36 of the LED, the UK adequacy decisions will be reviewed every four years to ensure the UK continues to offer an adequate level of protection.
The UK Government’s Press Release welcoming the draft adequacy decisions is available here.
On 10 February 2021, the EU Member States agreed on the EU Council’s negotiating mandate for the draft ePrivacy Regulation. The new Regulation will repeal and replace the existing ePrivacy Directive 2002/58/EC. The text approved by the EU Member States allows the EU Council to start negotiations with the European Parliament on the final text of the ePrivacy Regulation.
The EU Council’s Press Release sets out the key highlights of the draft ePrivacy Regulation, which include:
- The rules will apply when end-users are in the EU. This also covers cases where the processing takes place outside the EU or the service provider is established or located outside the EU.
- The Regulation will cover electronic communications content and metadata (such as information on location, time and recipient of a communication).
The Irish Data Protection Commission (DPC) has imposed a €70,000 fine on University College Dublin (UCD) for failure to implement appropriate security measures; storing data longer than necessary, and delaying in notifying the DPC of a data breach. This is the sixth GDPR fine imposed by the DPC. Previous GDPR fines included 3 fines on Tusla (the Child and Family Agency) amounting to a total of €200,000; a €450,000 fine on Twitter, and a €65,000 fine on the HSE. These fines similarly concerned failure to implement appropriate security measures to prevent the unauthorised disclosure of personal data; delaying in notifying the DPC of the data breach; and failing to adequately document the breach.
On 15 December 2020, the Minister for Health announced Ireland’s National COVID-19 Vaccination Strategy. The first vaccine was approved for use on 21 December 2020, with the first dose administered in Ireland on 29 December 2020. A second vaccine was approved for use on 6 January 2021 and the approval of additional vaccines is anticipated in the coming months.
In light of the rapidly deteriorating public health situation and the widespread prevalence of COVID-19 in the community, it is clear that the prompt implementation of Ireland’s vaccination strategy is the only viable way out of this pandemic. With this in mind, employers need to get to grips with some novel and complex issues that will arise this year as some, but perhaps not all, of their workforce is vaccinated. In this publication we consider some of the key issues (including data protection concerns), that employers are likely to encounter as the vaccination strategy is ramped up and more of the working population become eligible for vaccination.