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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

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

Meta-owned Instagram has been fined €405 million by the Irish Data Protection Commission (DPC) for violations of the EU General Data Protection Regulation (GDPR), following a two year investigation into how the social media platform handles children’s data. This is the largest fine imposed by the DPC to date. Below, we highlight some of the key issues arising in the case.

Continue Reading Irish DPC fines Instagram a record €405 million

On 18 July 2022, the United Kingdom (UK) government set out its new proposals for regulating the use of artificial intelligence (AI) technologies while promoting innovation, boosting public trust, and protecting data. The proposals reflect a less centralised and more risk-based approach than in the EU’s draft AI Act.

The proposals coincide with the introduction to Parliament of the Data Protection and Digital Information Bill, which includes measures to use AI responsibly while reducing compliance burdens on businesses to boost the economy.

Continue Reading UK government announces its proposals for regulating AI

Background

On 1 August 2022, the Court of Justice of the European Union (“CJEU”) issued a decision (“Decision”) clarifying how the indirect disclosure of sexual orientation data is protected as special category data under Article 9 of the EU General Data Protection Regulation (“GDPR”). “Special Category Data” is defined within Article 9(1) of the GDPR and includes (for example) a data subject’s racial or ethnic origin or data concerning a natural person’s sex life or sexual orientation. The processing of such sensitive personal data is expressly prohibited, unless the processing is exempted from the prohibition in the sense of Article 9(2) GDPR.

Continue Reading CJEU rules on interpretation of EU GDPR special categories of data

On 14 July 2022, the UK Information Commissioner’s Office (“ICO”) has launched a public consultation on its draft strategic three year plan, titled “ICO25”. The plan sets out a commitment to safeguard the information rights of the most vulnerable individuals with the aim of empowering people to confidently share their information to use today’s market products and services, with work particularly targeting:

  • children’s privacy;
  • AI-driven discrimination;
  • the use of algorithms within the benefits system; and
  • the impact of predatory marketing calls.


Continue Reading ICO25: ICO sets out its three year strategic plan

On 17 June 2022, in response to its consultation in 2021 on the same topic (which we wrote about here), the UK government published more detailed proposals to reform data protection laws in the UK. The response to the consultation can be found here. The intention of the reforms is to achieve greater personal data use enabling economic growth by removing barriers and reducing obstacles for organisations whilst maintaining high standards of personal data protection and EU adequacy.

Continue Reading Government releases proposals to reform UK data protection laws