Privacy & Data Protection

On 17 November 2022, the UK Information Commissioner’s Office issued updated guidance on international personal data transfers.  The guidance is to be used for transfers of personal data from the UK to third countries. The ICO added a template transfer risk assessment (TRA) to the guidance, which is required when organisations rely on a  transfer tool under Article 46 of the UK GDPR, e.g. the ICO’s International Data Transfer Agreement (the UK version of the EU SCCs); the Addendum to the EU SCCs, or the Binding Corporate Rules. The requirement to carry out transfer impact assessments stems from Article 46(1) of the UK GDPR, which states that the transfer mechanisms can be used “on condition that enforceable data subject rights and effective legal remedies for data subjects are available” confirmed by the CJEU’s Schrems II judgement.

The ICO’s TRA offers an alternative approach to the  EDPB’s transfer impact assessments (TIA),  to assist data exporters with carrying out their analysis to check that that protections under the transfer tool are not undermined by the laws and practices of the recipient third country.

Continue Reading ICO provides an alternative to the EDPB transfer impact assessment

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

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

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 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