Photo of Eoghan O'Keeffe

Heading into the Christmas period, festive shoppers may notice an increasing number of retailers are offering receipts via email (e-receipts) rather than the traditional paper docket. Providing a receipt through email has a number of advantages for retailers and consumers. There is the obvious environmental benefit and it provides an easier means for customers to store and find receipts than an over-stuffed wallet.

However, new guidance from the Data Protection Commissioner (DPC) has stressed the need for retailers to ensure that when customers provide their details for the purpose of receiving e-receipts, they should be fully informed and consent to how that data may be used. Of central concern is the retailers’ use of email addresses for subsequent direct marketing.

Continue Reading DPC publishes guidance on e-receipts

Photo of Vladimir Rakhmanin

The new Consumer Protection Cooperation Regulation (CPC) was passed on 14 November 2017, with the goal of providing enforcement authorities with additional powers to combat unlawful online practices. The CPC will also help harmonise consumer protection law across the EU. While the CPC is sure to aid compliance, it remains to be seen how far-reaching some of the powers will become, in particular, the website-blocking power referred to below.

Continue Reading Consumer Protection Cooperation Regulation introduced to combat unlawful online practices

Photo of Davinia Brennan

We have updated our GDPR Guide for Businesses to take account of new EU regulatory guidance. The guide is a ‘living document‘, which we will expand as more regulatory guidance is published.

The EU Article 29 Working Party has published guidance on a number of key changes introduced by the GDPR, including: administrative fines, mandatory breach notification, data protection officers, lead supervisory authority, data portability, profiling, and data protection impact assessments.

More regulatory guidance is expected shortly, as well as publication of the new Irish Data Protection Bill, which will give effect to, and provide for derogations from, the GDPR.

With only 6 months left until the GDPR comes into force, it is essential to start making preparations now, if you have not already done so.

For more information see our dedicated GDPR site.

Photo of Davinia Brennan

At its plenary meeting this month, the WP29 adopted the final version of its Data Protection Impact Assessment (DPIA) guidelines.

It also adopted draft guidelines on data breach notification and profiling, and administrative fines, which will be open for public consultation for 6 weeks before their final adoption. The guidelines are expected to be published shortly on the European Commission’s WP29 webpage.

Each WP29 subgroup provided a state of play of its work on the WP29’s priorities on the GDPR, including guidelines on consent, transparency, and update of data transfer tools which are to be adopted between November 2017 and February 2018.

On certification, the discussions are continuing and the guidelines should be proposed for adoption at the February 2018 WP29 plenary.

The WP29 also worked on the organization and structure of the EDPB and of the cooperation system to be ready for May 2018.

Photo of Davinia Brennan

The Government has published its legislation programme for Autumn 2017.  The programme lists priority legislation, legislation due to undergo pre-legislative scrutiny, and all other legislation it is working on. Listed below are the data protection, cyber-security and IP-related Bills coming down the track.

Priority legislation

  • Data Protection Bill – This Bill will give effect to and provide for derogations from the GDPR, and transpose the Law Enforcement Directive (2016/680). The Heads of Bill were published in May 2017, and pre-legislative scrutiny was completed on July 2017.  The legislation programme lists the Bill as “priority legislation for publication” this Autumn, but there is no indication as to when exactly the Bill is expected to be finalised and start its passage through the Oireachtas. See our blog post on the Heads of Bill here.

Continue Reading Data Protection, Cyber-Security & IP legislation coming down the track

Photo of John Cahir

In a much anticipated judgment, the Irish High Court yesterday decided to ask the Court of Justice of the European Union (CJEU) to rule on the validity of Standard Contractual Clauses (SCCs).


What is at stake?

SCCs, also known as “Model Contracts”, are contractual terms approved by the European Commission for validating transfers of personal data to countries outside the EEA region. SCCs are perhaps the most widely used legal instrument supporting EU-US data transfers. For many businesses, they are the only available means of lawfully transferring data to the US or other third countries.

If the SCCs are held to be invalid by the CJEU, many businesses operating from Europe will find themselves unable to lawfully transfer personal data to the US. This will in turn pose severe logistical and economic challenges to EU-US trade.

The legal challenge to the SCCs touches on the politically sensitive areas of data privacy and state surveillance. Therefore, a ruling that invalidates the SCCs will also present a fresh challenge for the EU and US authorities to negotiate a long lasting solution to transatlantic data transfers.

Pending the CJEU’s ruling, businesses can continue to rely on the SCCs.

How did the case come about?

Back in 2013, Mr Schrems complained to the Irish Data Protection Commissioner (DPC) about the transfer of his personal data by Facebook in Ireland to its parent company in the US under the EU-US Safe Harbour mechanism.

That complaint resulted in the invalidation of the EU-US Safe Harbour mechanism by the CJEU (Schrems I). Following the CJEU decision, Facebook placed reliance on the SCCs for making legal transfers of data between Ireland and the US, and Mr Schrems decided to reformulate his complaint against Facebook.

In the course of carrying out the new investigation, the DPC determined that she had “well-founded” objections in relation to the validity of the SCCs. In particular, she was concerned that there was an absence of effective legal remedies for EU citizens whose data are transferred to the US, and she believed that the SCCs do not answer these concerns. Only the CJEU can decide on the validity of European Commission decisions such as the SCCs. Therefore, the DPC applied to the Irish High Court so that questions regarding the validity of the SCCs could be brought before the CJEU.

What did the Irish High Court say?

Ms Justice Costello delivered a wide-ranging 152 page judgement. Of particular note are the following:

Court’s Jurisdiction

  • The Court rejected the argument advanced by Facebook that the case is concerned with processing of data for “national security” purposes and that consequently it falls outside the scope of EU law by virtue of Article 4(2) of the Treaty on the European Union, which reserves competence over national security issues to Member States.
  • In particular, the Court held that this submission was inconsistent with the ruling of the High Court and the CJEU in Schrems I, where the court proceeded on the basis that it had jurisdiction to rule on the reference.
  • The Court also rejected the argument that that the EU-US Privacy Shield precludes the making of a reference to the CJEU.  The Court held that the Privacy Shield is a decision that is confined to data transferred to US organisations that have self-certified as complying with the Privacy Shield principles, and that it is not an unconditional adequacy decision.

SCCs

  • The Court agreed with the DPC that the SCCs alone cannot ensure an adequate level of protection in third countries for data protection rights. Even when data has been transferred to a third country under the SCCs, “the data is still entitled to a high level of protection” and “DPAs have an obligation to ensure that the data still receives a high level of protection and they are expressly granted powers to suspend or prohibit data transfers” (paragraph 153).
  • The terms of the SCCs do not themselves provide an answer to the concerns raised by the DPC and the Court focussed on the question of whether Article 4 of the SCCs and Article 28 of the Data Protection Directive (the Directive) alleviated those concerns – these provisions enable a national data protection authority to ban or suspend data transfers to third countries.
  • The Court ruled that a referral to the CJEU is necessary to determine whether the existence of the discretionary power conferred on the DPC by Article 4 of the SCCs and Article 28(3) of the Directive to suspend or ban data transfers to a non-EEA country, on the basis of the legal regime in that country, is sufficient to secure the validity of the SCCs.

Article 47/52 of the Charter

  • The Court held that the DPC had raised well-founded concerns that there is an absence of an effective remedy in US law compatible with the requirements of Article 47 of the Charter of Fundamental Rights, for an EU citizen whose data are transferred to the US.
  • The Court agreed with the DPC that there are well-founded concerns that the limitations on the Article 47 right, faced by EU data subjects in the US, are not proportionate or strictly necessary within the meaning of Article 52(1) of the Charter.

Uniformity

  • The Court noted the undesirability of having data transfers banned in one Member State under the SCCs on the basis of the inadequate laws of the third country, but without that ban impacting on transfers made to the same third country from other EU member states.  The Court indicated that only a decision of the CJEU can resolve the potential for inconsistent applications of the Directive in this regard.

Privacy Shield Ombudsperson

  • The Court agreed with the DPC that there are well-founded concerns that the Privacy Shield Ombudsperson redress mechanism, which is available to data subjects whose data are transferred under SCCs (as well as the EU-US Privacy Shield), does not respect the essence of EU citizens’ rights under Article 47 of the Charter.
  • The Court held that a decision of the CJEU is necessary to determine whether the mechanism amounts to a remedy satisfying the requirements of Article 47.

What next?

The Court has not yet framed the questions to be sent to the CJEU.  The parties to the proceedings will be afforded an opportunity to make written submissions on the form of such questions to be referred to the CJEU, and the Court will then determine the exact questions to refer.

Once the reference is made, it will be for the CJEU to fix a hearing date. It usually takes an average of 1.5 years before the CJEU rules on a reference, although the CJEU may decide to prioritise the hearing of this case given its importance.

For further information, please contact John WhelanJohn CahirMark Rasdale or Claire Morrissey.

Photo of Davinia Brennan

The UK Information Commissioner’s Office (ICO) is consulting on draft GDPR guidance on contracts and liabilities between controllers and processors. The guidance seeks to help organisations understand what must be included in contracts under the GDPR, and the new responsibilities and liabilities of processors.

Continue Reading ICO opens consultation on draft guidance on controller/processor contracts and liabilities

Photo of Davinia Brennan

The Data Protection Commissioner (DPC) has called for submissions on issues of Transparency and International Data Transfers under the GDPR. The submissions received by the DPC from its consultation will be shared with the Article 29 Working Party (WP29), at its third Fablab in Brussels on 18 October 2017 to inform the preparation of new guidelines on transparency under the GDPR and the updating of existing guidelines on international data transfers.

Continue Reading DPC consultation on international transfers & transparency under the GDPR

Photo of Davinia Brennan

The EU Council has proposed amendments to the draft ePrivacy Regulation (the Regulation). The Presidency points out that work on the text will be incremental and this is only its first redraft.

Proposed amendments include:

Scope – The Presidency clarifies the precise material and territorial scope of the Regulation, as including:

  • the processing of electronic communications content in transmission, and of electronic communications metadata carried out in connection with the provision of electronic communications services to end-users in the EU;
  • information related to, processed by, or stored in the terminal equipment of end users located in the EU;
  • the placing on the market of software permitting electronic communications, including the retrieval and presentation of information on the internet;
  • the offering of a publicly available directory of end-users of electronic communications services located in the EU, and
  • the sending or presenting of direct marketing communications to end users located in the EU.

Continue Reading EU Council proposes revisions to the draft ePrivacy Regulation

Photo of Davinia Brennan

The U.S. Federal Trade Commission (FTC) announced on 8 September that three U.S. companies have agreed to settle FTC charges that they misled consumers, by falsely claiming they were certified to participate in the Privacy Shield. In separate complaints, the FTC alleges, all three companies failed to complete the certification process for the Shield.  As part of their settlements with the FTC, the three companies are prohibited from misrepresenting the extent to which they participate in any privacy or data security program sponsored by the government or any self-regulatory or standard-setting organization, and must comply with FTC reporting requirements. The actions against the three companies are the first cases the FTC has brought to enforce the Shield, which was adopted last July 2016.

Continue Reading Three U.S. companies charged for falsely claiming compliance with Privacy Shield