On 28 September 2022, the European Commission published the proposed AI Liability Directive. The Directive joins the Artificial Intelligence (AI) Act (which we wrote about here) as the latest addition to the EU’s AI focused legislation. Whilst the AI Act proposes rules that seek to reduce risks to safety, the liability rules will apply where such a risk materialises and damage occurs.

In a European enterprise survey, 33% of companies considering adopting AI quoted ‘liability for potential damages’ as a major external challenge. The proposed Directive hopes to tackle this challenge by establishing EU-wide rules to ensure consumers obtain the same level of protection as they would if they issued a claim for damages from using any other product.

Continue Reading What happens when AI goes wrong? The proposed EU AI Liability Directive

A recent £4.4m fine imposed by the ICO in October 2022 reveals its views on the responsibility of the parent company, senior management, and financial investments in organisations’ security standards to prevent cyber attacks.

Continue Reading ICO expects large organisations to make financial investments to maintain their security standards

The Fall 2022 Edition of the quarterly IT & Data Protection Newsletter by Reed Smith Germany has just been released:
English version

German version

Continue Reading Get your Update on IT & Data Protection Law in our Newsletter (Fall 2022 Edition)

On 6 October 2022, the Advocate General (Campos Sánchez-Bordona) issued his opinion in UI v Österreichische Post AG on the interpretation of the rules on civil liability under the GDPR .

He concluded that a data subject must have suffered harm in order to claim compensation, and that breach of the GDPR alone was not sufficient.  There is also a distinction to be drawn between mere upset (which does not give rise to a right for compensation) and non-material damage (which does).

Continue Reading ‘Mere upset’ insufficient for compensation under the GDPR

The Competition & Markets Authority (‘CMA’) published its response to the Department for Digital, Culture, Media & Sport (‘DCMS’) policy paper on establishing a pro-innovation approach to regulating artificial intelligence (AI) on 29 September 2022. This is in parallel with the coming into force of the new National Security & Investment Act 2021, under which the UK government is scrutinising transactions that use AI to produce goods, services and technology with the potential to track individuals, objects and events.

In its response, the CMA commented on the need to (i) adopt a risk based approach to the regulation of AI, (ii) consider whether existing regulatory powers are appropriate, and (iii) encourage collaboration between regulators.

Continue Reading The CMA’s shares its thoughts on a ‘pro-innovation’ approach to regulating artificial intelligence

At a Glance:

On Oct. 7, 2022, U.S. President Joe Biden issued Executive Order on ‘Enhancing Safeguards for United States Signals Intelligence Activities’ (“Executive Order” or “EO”). It is described by the U.S. as “a durable and reliable legal foundation” and “that the new ’robust’ commitments contained in the executive order ’fully addresses’ the issues raised in the [EU] Court of Justice’s decision on Privacy Shield” (the “Schrems II ruling”). This Executive Order will form the basis for a new EU-U.S. Data Privacy Framework, aka Safe Harbor Framework v3 or Privacy Shield 2.0.

The issuance of the EO was a central part of the agreement in principle reached between the EU and the U.S. to address the issues raised in the Schrems II ruling.  While most of the world waited for this Executive Order, we now all wait for the EU’s response as to whether or not this EO, once its requirements are implemented, suffices to lift the U.S. to an adequate level of data protection within the meaning of Art. 45 GDPR. Even before full implementation of the procedural aspects of the EO, the Executive Order will have a positive impact on data transfers given that the surveillance must be conducted in a proportionate manner that takes into account the impact to privacy and civil liberties of all persons, assuming the EU will be designated as a “qualifying state” by the U.S. Attorney General under the EO.

Continue Reading Transatlantic Data Flows – Chapter 3: The EU-U.S. Data Protection Framework: A Summary of the U.S. Executive Order issued on Oct. 9 and its immediate and future effects

The European Commission published a proposal for a Cyber Resilience Act on 15 September 2022 (the ‘Regulation’), which aims to:

  • ensure that cyber security is considered during the development of hardware and software products and is continuously improved throughout that product’s life cycle; and
  • improve transparency so that users can take cybersecurity into account when selecting and using a product with digital elements.
Continue Reading EU Commission proposes Cyber Resilience Act to bolster the EU’s cyber security rules.

On October 3, 2022, the UK-U.S. agreement on Access to Electronic Data for the Purpose of Countering Serious Crime (the UK-U.S. Agreement) came into force. The UK and the U.S. governments signed the UK-U.S. Agreement on October 3, 2019 under the U.S. Clarifying Lawful Overseas Use of Data Act 2018 (“CLOUD Act”). The U.S. government is negotiating similar agreements with the governments of Canada, Australia and New Zealand, but notably, not with the European Union.

Continue Reading Does the UK-U.S. agreement under the U.S. CLOUD Act affect UK’s adequacy under the GDPR?

On 26 September 2022, the UK Information Commissioner’s Office (“ICO”) issued a blog post addressing compliance with data subject access requests (“DSARs”).

A DSAR is a written request by an individual to an organisation asking for access to the personal information it holds on them. This is a legal right everyone in the UK has and can be exercised at any time for free (in most circumstances).

Continue Reading ICO issues guidance on responding to subject access requests

In the October edition of IAPP’s Privacy Advisor, Divonne Smoyer, Hubert Zanczak, and Stuart Cobb speak to New York State Attorney General, Letitia James, about her view of consumer privacy, her work to date in enforcing existing laws and her thoughts about the future of privacy in New York and the country.