The General Data Protection Regulation (GDPR) will automatically come into force across the EU on 25 May 2018. As the deadline fast approaches, Member States are busy progressing their draft implementing legislation. Article 23 of the GDPR provides Member States with discretion over how certain provisions will apply. These proposed derogations to the GDPR have been a focus point for many commentators on the draft national legislation.
News reports have confirmed that on Wednesday 26 July, after a public consultation period on the issue, the Irish Government have agreed to set the digital age of consent at 13 years of age. Article 8 of the General Data Protection Regulation (GDPR) provides that a child under the age of 16 cannot consent to the processing of their personal data without the express consent of their parents. EU Member States have been granted the discretion to set a lower age under the GDPR provided that it is no lower than 13.
The decision follows consideration of a submission made by Special Rapporteur for Child Protection, Dr Geoffrey Shannon, who had previously called for the lowest age of consent to be adopted in a Joint Oireachtas Committee on Justice, Defence and Equality meeting on 5 July which discussed the General Scheme of the Data Protection Bill 2017. Dr Shannon stressed the importance of protecting a child’s right to participate and have their voice heard when considering the digital age of consent.
A similar decision has been taken in the UK where the Department of Digital, Culture, Media & Sport have confirmed that they intend to set the age of digital consent at the lower threshold of 13 years of age, in a Statement of Intent released on 7 August, discussing the proposed Data Protection Bill 2017.
On 26 July 2017 the Court of Justice of the European Union (CJEU) delivered its Opinion that the draft Passenger Name Record (PNR) Agreement between the EU and Canada is not compatible with the EU Charter of Fundamental Rights (the Charter) and may not be concluded in its current form. The Opinion follows a referral by the European Parliament to the CJEU and is the first time the Court has been requested to examine the compatibility of an international agreement with the EU Charter.
The UK Information Commissioners Office (the ICO) has released an International Strategy (the Strategy) in which it outlines its plans for 2017 – 2021 to deal with the data protection challenges presented by globalism, the GDPR and Brexit. The Strategy which can be read in full here is the first with an international emphasis released by the ICO. It is described by the UK Information Commissioner, Elizabeth Denham, in a statement on 4 July, as a “blueprint” for how the ICO will deliver its international objectives.
The Strategy reiterates the ICO’s commitment to assisting with the implementation of the GDPR into UK law. Operating on the assumption that the UK will implement the provisions of the GDPR prior to leaving the EU, the ICO expresses an intention to strongly engage with the Article 29 Working Party and the European Data Protection Board up until the UK’s exit from the EU. Furthermore, it notes that it will seek to maintain working relationships with these groups post-Brexit. The ICO qualifies this by stating this will be dependent on the outcome of the Brexit negotiations.
While the Strategy encompasses a 5 year time period, the ICO envisages that it will be subject to regular review and updated to reflect any new challenges that may arise in the protection of personal data.
The UK Information Commissioner’s Office (the ICO) has ruled that Virgin Trains East Coast (Virgin) did not break data protection law when it published CCTV images of the UK’s Labour party leader, Jeremy Corbyn. Virgin released the footage last year following Mr Corbyn’s comments that a Virgin train he was travelling on from London to Newcastle was “ram-packed”. The footage shows Mr Corbyn walking past empty seats.
Following its investigation, the ICO found that Virgin had a “legitimate interest” to release the footage of Mr Corbyn: “namely correcting what it deemed to be misleading news reports that were potentially damaging to its reputation and commercial interests”. The ICO acknowledged that Virgin could not have achieved this without publishing Mr Corbyn’s image.
The ICO did find, however, that Virgin breached the law when it published images of other passengers on the same service. It stated that Virgin should have taken better care to obscure the faces of other passengers on the train. Publication of their images was unfair and a breach of the first principle of the UK Data Protection Act that personal data shall be processed fairly and lawfully.
The ICO stopped short of formal regulatory action against Virgin to reflect “the exceptional circumstances of the breach”. It noted that it was “a one-off incident, and the people identified were unlikely to suffer serious distress or detriment”. However, the ICO did stress that Virgin “has not been let off the hook” and will strengthen its data protection training and policies and ensure it has easy access to pixelation services should the need arise again.
The Article 29 Working Party (WP29) has recently provided its Opinion 2/2017 on data processing at work. The Opinion, adopted on 8 June 2017, highlights the risks and challenges of processing employees’ personal data in light of new technologies. While the Opinion focuses on the current data protection regime, it also considers some of the obligations arising under the General Data Protection Regulation (GDPR) from 25 May 2018.
In advance of the forthcoming Dáil elections, the Office of the Data Protection Commissioner (ODPC) has issued guidance to candidates for election and their representatives on canvassing, data protection and electronic marketing (the Guidance). Publication of the Guidance follows the ODPC’s previous efforts to boost awareness of individuals’ privacy rights in this area (see previous blog here).
The Guidance includes an overview of the provisions in relation to unsolicited marketing and cookie use as contained in the EC (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011 (S.I. 336 of 2011). It also emphasises the use of clear and prominent Privacy Statements on websites and data base compliance with the 8 Data Protection Principles.
In Barbulescu v Romania, a case concerning employees’ right to privacy, the European Court of Human Rights (ECHR) held that an employer could monitor and access personal messages sent by an employee during work hours from his Yahoo Messenger account. The decision, however, is not a precedent for unrestricted monitoring by employers of personal messages sent by employees during office hours.
On 7 December 2015, the EU Council reached an informal agreement with the EU Parliament on the draft Network and Information Security (NIS) Directive.The draft Directive sets out cybersecurity obligations for operators of essential services in the healthcare, banking, energy and transport sectors, and also digital service providers (including e-commerce platforms, search engines, social networks, internet payment gateways, and cloud services). These operators will be required to take measures to manage cyber risks and report major security incidents.
In its ongoing effort to raise awareness of individuals’ privacy rights, the Office of the Data Protection Commissioner (ODPC) has published a press release on their website on the "Electoral Register and ‘Opting Out’ of the Edited Register".
Every year, the Department of the Environment, Community and Local Government encourages individuals to register to vote or to check that their details are up to date on the Electoral Register in advance of the 25 November deadline. In line with publicising such rights, the ODPC wishes to draw attention to the Edited Electoral Register and how it relates to direct marketing.