On 1 October 2019, the Court of Justice of the European Union (CJEU) handed down a crucial decision impacting the way that consent is obtained on the internet. The judgment relates to Case C-673/17 (Planet49 – a previous post outlining the background can be found here). In the Planet49 case, the German Federal Court referred a number of questions to the CJEU regarding the validity of consent to cookies placed by a website operating an online lottery. The questions before the CJEU amounted to the following: 1. Does a pre-checked
On 19 July the French Data Protection Authority (the “CNIL”) published new guidelines on cookies and trackers. These replace the existing Recommendation No. 2013-378 of 5 December 2013, are intended to be in line with relevant GDPR provisions and have been produced in anticipation of the future ePrivacy Regulation. The guidelines will be supplemented, at a later stage, with sectoral recommendations setting out practical methods for obtaining consent. These sectoral recommendations will be included in a final version of the guidelines on cookies and trackers open for public consultation, which
This is the second installment in Hogan Lovells’ series on the California Consumer Privacy Act. Words matter. Nowhere is this truer than in legislation, where word choices—often the product of long debate and imperfect compromise—determine the scope and impact of a law. Legislative history can speak volumes about those word choices, and the unique legislative history of the California Consumer Privacy Act of 2018 (CCPA) only highlights the importance of understanding the terms used in the act.
Judging by the number of calls and the intensity of the discussions about how to comply with the cookie consent requirement in a post-GDPR world, this issue has become a top worry for organisations and data protection officers. Partly due to the visibility of the mechanisms used to collect this consent, and partly due to the potential implications of operating a website without cookies, the dilemma around what solution to deploy has become a serious business decision. Different business stakeholders are often at odds with each other and matters are
Nothing challenges the effectiveness of data protection law like technological innovation. You think you have cracked a technology neutral framework and then along comes the next evolutionary step in the chain to rock the boat. It happened with the cloud. It happened with social media, with mobile, with online behavioural targeting and with the Internet of Things. And from the combination of all of that, artificial intelligence is emerging as the new testing ground. 21st century artificial intelligence relies on machine learning, and machine learning relies on…? You guessed it:
Recently, the Russian Data Privacy Authority (Roskomnadzor) organized an Open Doors Day in honor of the International Data Privacy Day. During the occasion, Roskomnadzor officers presented on the authority’s 2017 enforcement activities. They followed this presentation with an open question and answer period, during which they responded to numerous questions raised by attendees. We summarize the key takeaways below. 2017 Roskomnadzor Enforcement Highlights Data operators continue to register with the Roskomnadzor, with approximately 33,000 new data operators registering with the Roskomnadzor in 2017, bringing the total to just over 400,000
It is finally here. This is the year of the GDPR. A journey that started with an ambitious policy paper about modernising data protection almost a decade ago – a decade! – is about to reach flying altitude. No more ‘in May next year this, in May next year that’. Our time has come. Given the amount of attention that the GDPR has received in recent times, data protection professionals are in high demand but we are ready. We knew this was coming and we have had years to prepare.
Following the European Commission and European Parliament’s proposed versions of the EU Regulation on Privacy and Electronic Communications (the ePR), we are now waiting for the Council of the European Union to agree their position before discussions between the three bodies can begin. A discussion paper from the Bulgarian Presidency of the Council dated 11 January 2018 (the Paper) shows that the Council is still considering multiple options in relation to several critical issues. In particular: The Commission’s draft of the ePR clarified that communications between machines (M2M communications) are
The Information Commissioner’s Office (ICO) has issued a £70,000 fine against Flybe and a £13,000 fine against Honda Motor Europe Ltd for breaching Regulation 22 of the Privacy and Electronic Communications Regulations (PECR) by sending emails requesting individuals to update their marketing preferences. The two cases confirm that: the interpretation by the ICO of what constitutes “marketing material” is very wide; and the ICO will take enforcement action against organisations that seek to circumvent the rules on direct marketing by disguising marketing messages as service messages. Flybe sent emails with
Data brokers are organisations that obtain data from a variety of sources and then sell or license it to third parties. Many trade in personal data, which is purchased by their customers for several purposes, most commonly to support marketing campaigns. In 2012, data brokers’ trade in personal data was reported to have generated over $150 billion in revenue. The UK data protection regulator (the “ICO”) has for some time been actively enforcing against organisations who buy individuals’ personal data for direct marketing purposes without first conducting appropriate due diligence
A stricter regime for profiling Profiling and big data analytics are set to play a pivotal role in the growth of the digital economy. From cookie-based tracking to people’s interaction through social media, the size and the degree of granularity of our digital footprints have created unprecedented opportunities for business development and service delivery. The scale of data collection, data sharing and data analysis has not gone unnoticed to public policy makers and this has led to the inclusion of special rules addressing profiling in the Regulation. In fact, from the point of view of those businesses seeking to benefit from data
Grounds for processing Currently, under the Data Protection Directive, each instance of data processing requires a legal justification – a “ground for processing”. This fundamental feature of EU data protection law will remain unchanged under the Regulation. However, the bar for showing the existence of certain grounds for processing will be set higher. This is especially true with regards to consent. Stringent new consent rules The Regulation lays out strict new conditions for obtaining valid consent from the data subject. For starters, if consent is given in a written document, and that document also concerns other matters (e.g. terms of
Spain is well known for having one of the most restrictive data protection regimes in the European Union (EU). It also counts with some of the highest penalties (fines are up to € 600,000 per infringement), and a data protection authority – the Spanish Data Protection Agency (AEPD) – with a reputation for being one of the fiercest of the EU. Moreover, the penalties envisaged are not only on paper; they are applied on a regular basis by the AEPD. For instance, in the past few years, it has imposed
A stricter regime for profiling Profiling and Big Data analytics are set to play a pivotal role in the growth of the digital economy. From cookie-based tracking to people’s interaction through social media, the size and the degree of granularity of our digital footprints have created unprecedented opportunities for business development and service delivery. The scale of data collection, data sharing and data analysis has not gone unnoticed to public policy makers and this has led to the inclusion of special rules addressing profiling in the Regulation. In fact, from