Employee monitoring versus privacy rights is back in the spotlight due to today’s decision by the Grand Chamber of the European Court of Human Rights (ECHR) in Bărbulescu v. Romania. The Grand Chamber held there had been a violation of Article 8 of the European Convention on Human Rights, where an employer monitored and accessed personal emails sent by an employee during work hours from his Yahoo Messenger account, using a company computer, without notifying the employee in advance of such monitoring.
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.
Under Article 23, Member States can introduce exemptions from the GDPR’s transparency obligations and individual rights, but only where the measure respects the essence of the individual’s fundamental rights and freedoms and is a necessary and proportionate measure in a democratic society. The measure must safeguard one of the following:
- national security;
- public security;
- the prevention, investigation, detection or prosecution of criminal offences, the execution of criminal penalties or breaches of ethics in regulated professions;
- other important public interests, in particular economic or financial interests (e.g. budgetary and taxation matters, public health and security);
- the protection of judicial independence and proceedings;
- monitoring, inspection or regulatory functions connected to the exercise of official authority regarding security, defence, other important public interests or crime/ethics prevention;
- the protection of the individual, or the rights and freedoms of others; or
- the enforcement of civil law matters.
Chapter IX of the GDPR provides Member States with further exemptions, derogations, conditions or rules in relation to specific processing activities.
UK Call for Views on the GDPR
Earlier this year, the UK’s Department for Digital Culture, Media and Sport (DCMS) opened a public “call for views” as part of its implementation process. All stakeholders with an interest in data protection were encouraged to share views on any and all derogations in the UK Data Protection Bill.
Following the end of the call for views, the DCMS published its Statement of Intent and outlined its approach to the Data Protection Bill. The document (available here) emphasises the UK Government’s desire to continue its “gold standard” of data protection law. It states that the GDPR will be implemented in a way that, as far as possible, preserves the concepts of the UK’s Data Protection Act 1998 and ensures a smooth transition post Brexit, while complying with the GDPR and other applicable directives.
The DCMS has also provided a detailed summary of the proposed GDPR derogations in the Data Protection Bill (available here). The summary usefully sets out the derogations in the GDPR, the relevant GDPR article, and the reason for the UK deviating from the default position, where applicable.
It is reported that the Bill will be published in early September 2017.
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 Court observed that the Charter rights are not absolute, and that an agreement allowing for the transfer and retention of data to ensure public security would be capable of justifying even serious interference with fundamental rights such as privacy and personal data protection. Any such interference should, however, be (1) proportionate, (2) strictly necessary and (3) guided by clear and precise rules governing its scope and application. The transfer of sensitive data would also require a precise and solid justification in addition to that of public security and the Court concluded that in this instance, there was no such justification.
Retention of Data
The envisaged Agreement provided that PNR data may be retained by Canada for five years after receipt of such data. The Court observed that the retention of data for the duration of a visitor’s stay in Canada did not exceed the limits of what is strictly necessary, but noted that as PNR data would be used as part of the verification process to grant entry into the territory, subsequent use of that data would require fresh justification by way of new circumstances or objective evidence. The Court suggested that except in cases of valid urgency, any decision by Canadian authorities to use PSN data after entry has been granted should be subject to prior review by a court or independent body. The retention of data after departure from Canada should also be limited to air passengers only when there is objective evidence available inferring a terrorism or crime risk.
The Court declared that as a number of other provisions were vague and did not adequately address the processing of PNR data in a clear and precise manner, it was not satisfied that the Agreement in its current form was compatible with the Charter.
The European Commission (EC) has opened an online public consultation on the targeted revision of EU consumer law (the Consultation). The Consultation follows the EC’s publication of the results of its Fitness Check on consumer and marketing law and of the evaluation of the Consumer Rights Directive (Directive 2011/83/EU) (the CRD).
Both the Consultation and the Fitness Check form part of the EC’s Regulatory Fitness and Performance (REFIT) programme, which aims to make EU law simpler, less costly and identify any inconsistencies and/or obsolete measures which may have appeared over time.
The Fitness Check carried out a comprehensive evaluation of six directives:
– the Unfair Commercial Practices Directive 2005/29/EC;
– the Unfair Contract Terms Directive 93/13/EEC;
– the Price Indication Directive 98/6/EC;
– the Consumer Sales and Guarantees Directive 1999/44/EC;
– the Injunctions Directive 2009/22/EC; and
– the Misleading and Comparative Advertising Directive 2006/114/EC.
In late May, the EC published its findings of its analysis of these six directives and its separate parallel review of the CRD. In brief, the EC found that “[t]he evaluations confirm that in general consumer law remains fit for purpose.” It did identify, however, the need to improve awareness, enforcement of the rules and redress opportunities to make the best of the existing legislation. It also stated that targeted legislative changes to address certain identified shortcomings of the directives could be beneficial.
Free Online/Digital Services
One of the shortcomings that the EC identified is that the CRD does not currently apply to the provision of ‘free’ online/digital services. ‘Free’ in this context means that the consumer does not pay with money for the service but instead provides data. Examples of this are cloud storage, social media or webmail, where the main contractual obligation of the trader is not to provide digital content but rather a service allowing the creation, processing, storing or sharing of data that is produced by the consumer.
The EC has stated that it will examine extending the scope of the CRD to include such contracts for ‘free’ digital services. This would extend traders’ pre-contractual information requirements and consumers’ 14 days right of withdrawal to any digital services. This singling out of the providers of ‘free’ digital services, demonstrates the EC’s continued focus on the digital economy and protecting consumers rights online.
The Consultation offers all citizens and organisations the opportunity to have their say on this matter along with other consumer law matters such as banning doorstop selling and better individual remedies for consumers harmed by unfair commercial practices including misleading “green” claims.
The Consultation will run for 14 weeks (June – October 2017). Click here for more details.
Stakeholders have written a joint letter to Article 29 Working Party (WP29) expressing their concerns about the GDPR consultation process. They believe that the GDPR consultation processes which have taken place so far with 30-day deadlines to respond were much too short, and that a reasonable consultation period (for example 8 weeks) should be set.
An additional concern is that the WP29 guidelines effectively introduce additional rules. The WP29 guidelines are non-binding, but can still be introduced as compulsory requirements at national level. The stakeholders therefore point out that whilst it is important that they provide clarity and help facilitate implementation, they should not undermine the GDPR’s provisions.
To date, the WP29 have issued guidelines on data portability, data protection officers and lead supervisory authorities, as well as draft guidelines on data protection impact assessments. Further guidance is being prepared by the WP29 on:
- Administrative fines
- Notification of personal data breaches
- Tools for international transfers
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.
The Opinion emphasises that despite a proliferation of new and affordable technologies that facilitate both covert and overt surveillance, fundamental principles of data protection will continue to apply. These principles include:
- the satisfaction of a legal basis to process under Article 7 of the DPD;
- whether the processing activity is both necessary and fair to the employee;
- whether the processing activity is proportionate; and
- whether the processing activity is transparent.
The WP29 reiterate that due to the imbalance between employer and employee, consent as a legal basis of processing will not be satisfactory for the majority of data processing at work. In some cases, the employer will be able to rely on contractual necessity to process personal data (such as paying the employee). The imposition of legal obligations (such as for the purpose of tax calculation) will also constitute a valid legal basis for processing. In order to rely on legitimate interests to legitimise data processing, the technology or method utilised must be necessary, proportionate and carried out in the least intrusive manner possible.
The WP29 emphasise that regardless of the legal basis for processing, a proportionality test should be undertaken prior to its commencement to consider whether the processing is necessary to achieve a legitimate purpose, as well as ensuring that any measures infringing the right to private life and secrecy of communications are limited to a minimum. This can form part of a Data Protection Impact Assessment (DPIA).
The WP29 comment that the GDPR requires the most privacy friendly settings to be provided as default when an employer issues a device to an employee. The GDPR also requires a DPIA to be carried out when processing is likely to result in a high risk to the rights and freedoms of employees, particularly when using new technologies. The employer must consult the supervisory authority prior to processing if these risks cannot be adequately addressed. The WP29 Opinion considers a number of data processing at work scenarios in which new technologies have the potential to result in high risks to the privacy of employees. In all such cases the WP29 highlight that the employer must consider whether the proposed processing is: (i) necessary, and if so the legal grounds that apply; (ii) fair to employees; (iii) proportionate to the concerns raised; and (iv) transparent.
The full opinion can be read here.
The European Council has finalised its position on the directive setting out new rules relating to the supply of digital content and digital services, acknowledging it as a priority for the Digital Single Market. The makings of the proposed directive were initially presented by the European Commission in late 2015 as part of the move towards a connected digital single market. On 8 June 2017, the European Council adopted its position on the scope of the proposed directive, the remedies for lack of supply and non-conformity, supplier liability and burden of proof restrictions.