On the 23 July 2020, the European Data Protection Board (EDPB) adopted FAQs on the Schrems II judgment. The FAQs provide answers to questions received by EU data protection authorities (DPAs) and will be developed and complemented by the EDPB in due course.

In brief, the EDPB clarifies:

• No grace period – The Court of Justice of the European Union (CJEU) has invalidated the Privacy Shield with immediate effect. The judgment does not provide any grace period during which companies can keep transferring personal data to the US without assessing the legal basis for the transfer.
• Use of SCCs for EEA-US transfers – US law (i.e. Section 702 FISA and EO 12333) does not ensure an essentially equivalent level of protection. Whether or not you can transfer personal data to the US based on the Standard Contractual Clauses (SCCs) will depend on the result of your adequacy assessment, taking into account the circumstances of the transfers, and supplementary measures you could put in place. The supplementary measures, along with SCCs, would have to ensure that US law does not impinge on the adequate level of protection they guarantee.

Continue Reading EDPB publish FAQs on Schrems II

The Court of Justice of the European Union has delivered its eagerly awaited decision, in Schrems II (Case C-311/18).

Why is the case important?

Schrems II calls into the question the ability of companies to lawfully transfer data from the EU to the United States (US) and other countries.

The GDPR contains strict rules on transferring data from the EU to third countries, and this case deals with the compatibility of these rules with surveillance laws in other countries.

What has the Court decided?

The headline outcome is that:

• The Privacy Shield decision is invalid with immediate effect – this means that companies can no longer rely on a Privacy Shield certification when transferring personal data to the US.
• Standard contractual clauses (SCCs) are valid – but their use is subject to certain pre-conditions and ongoing obligations.

Continue Reading Schrems II – The Verdict

In recent weeks, employers have been busy implementing the recommendations set out in the Government’s Return to Work Safely Protocol, in preparation for employees returning to the workplace.  Somewhat surprisingly, the Protocol makes no reference to the need to comply with data protection law, yet the measures recommended by the Protocol involve the processing personal data, in particular health data.

There has been a growing concern amongst employers in regard to how to ensure compliance with data protection law when implementing the protocol, in particular in relation to the issue and retention of pre-return to work questionnaires; use of contact tracing logs; and temperature testing.  The Department of Business, Enterprise and Innovation (DBEI) and the Data Protection Commission (DPC) have now published guidelines clarifying how employers can implement the Protocol in a manner that complies with their data protection obligations.

The Guidelines clarify that:

• Temperature testing should not yet be considered a requirement under the Protocol. If employers are carrying out such testing, for instance in high risk workplaces, then they should consider conducting a DPIA and ensure the testing is necessary and proportionate.
• Pre-return to work questionnaires completed by employees should collect the minimum information necessary and should not be retained once employees return to the workplace.
• Where contact tracing logs are kept by an employer in respect of employees who are in close contact for extended periods of time, where social distancing is difficult to maintain,  such logs should generally only be retained for the purpose of facilitating the HSE’s official contact-tracing procedures and to act as a memory aid for employees regarding close contacts. The data should only be retained for as long as necessary for this purpose. Employers should avoid disclosing information relating to a particular employee’s Covid-19 diagnosis to other employees.

The DPC’s Guidance is available here.

The DBEI Guidance is available here.

The Data Protection Commission (DPC) has published a two year Regulatory Activities Report, which reviews the range of its regulatory tasks from 25 May 2018 to 25 May 2020.

​The Report notes that the purpose of the two-year assessment is “to provide a wider-angled lens through which to assess the work of the DPC since the implementation of the GDPR; in particular, to examine wider datasets and annual trends to see what patterns can be identified.” 

Continue Reading DPC publishes Regulatory Activities Report for 2018-2020

As part of their lockdown exit strategy, governments around the world are launching Apps with contact tracing functions. The idea behind these Apps is that users will be alerted when another App user has tested positive to Covid-19, thereby enabling them to take appropriate action, such as self-isolating or undergoing testing.

It remains to be seen how effective contact tracing Apps will be in the fight against Covid-19, but it is clear that in order for the Apps to work, they need to be widely downloaded and used. The popularity, acceptance, and use of the Apps will undoubtedly depend on the extent to which the Apps enable individuals to control the collection and use of their personal data.

This briefing note considers the key data protection and privacy law issues arising in relation to contact tracing apps.

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