GDPR

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Three years after the European Commission’s (Commission) adoption of the updated Standard Contractual Clauses (SCCs), new clauses are on the horizon.

The Commission announced a recent initiative in which the SCCs would be open for public consultation beginning the fourth quarter of 2024, with potential updates to the SCCs being adopted by the Commission in the second quarter of 2025 (2025 Clauses). These 2025 Clauses offer the Commission the opportunity to address any gaps left by the current SCCs adopted on June 4, 2021.Continue Reading Another Update Already? New EU Standard Contractual Clauses on the Horizon to Further Safeguard Cross Border Data Transfers

Earlier this month, the Swiss Federal Council approved the Swiss-U.S. Data Privacy Framework (Swiss-U.S. DPF). Beginning September 15, 2024, companies may rely on the Swiss-U.S. DPF as a lawful basis to transfer personal data of Swiss residents to companies in the United States.Continue Reading Ready for Work: The Swiss Federal Council Approves of the Swiss-U.S. DPF

In August, India passed its long-awaited Digital Personal Data Protection Act, 2023 (“the Act”). Initially introduced in 2019, the draft bill went through several iterations before being approved by India’s Union Cabinet earlier this year. Although the Act shares many similarities to other privacy legislation, such as the EU’s GDPR and the United Kingdom’s UK GDPR, there are a few notable distinctions. While no official effective date for the law has been announced, companies should start familiarizing themselves with this new privacy law and its requirements. Here is a breakdown of what you should know.Continue Reading Breaking Down India’s Digital Personal Data Protection Act, 2023

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Switzerland is implementing new legislation to better protect its citizens’ data (“revFADP”), replacing the longstanding Federal Act on Data Protection of 1992. The revFADP improves the processing of personal data and grants Swiss citizens new rights consistent with other comprehensive data protection laws, such as the General Data Protection Regulation (GPDR) and UK GDPR. This important legislative change also comes with a number of increased obligations for companies doing business in Switzerland. Companies must quickly get up to speed on the revFADP requirements because the Act takes effect on September 1, 2023. Companies should not assume that compliance with the GDPR and UK GDPR equals compliance under the revFADP. While this revised legislation has many similarities to the GDPR, there are a few stark differences companies should be aware of. Here is the breakdown of what companies should know.Continue Reading Nothing Neutral about the New Swiss Federal Act on Data Protection

On December 13, 2022, the European Commission published a draft adequacy decision for the EU-U.S. Data Privacy Framework (“EU-U.S. DPF or DPF”) signaling the potential return of the framework allowing the flow of personal data between the EU and the United States. Although this is a draft decision, if approved, it will ease trans-Atlantic data flow and ease the restrictions that were placed after the 2020 Schrems II decision invalidated the EU-U.S. Privacy Shield framework for cross-border transfers. This draft adequacy decision ultimately concluded that the DPF provides an adequate level of protection of personal data.Continue Reading Don’t Call It A Comeback: EU-U.S. Data Privacy Framework Inches Closer to Implementation Following the European Commission’s Draft Adequacy Decision

Two weeks ago, the German Conference of the Independent Data Protection Authorities of Germany (Datenschutzkonferenz or “DSK”) released a report looking into Microsoft 365’s (Microsoft) compliance under the European Union’s General Data Protection Regulation (GDPR). DSK’s overarching conclusion of the report was that use of Microsoft 365 applications by businesses processing personal data runs afoul of GDPR requirements.

The DSK report alleged Microsoft’s policies and disclosures lack clarity with respect to how personal data is processed and which entity is processing that data. DSK was unable to conclusively determine the cases where Microsoft acts as a data controller rather than a data processor. The distinction between a data controller and a data processor is important because Article 5(2) of the GDPR imposes additional accountability requirements and responsibilities for data controllers. The DSK also expressed concerns regarding Microsoft’s lack of overall clarity and notification to users about subcontractors and sub-processors. The group determined that Microsoft’s lack of detail regarding subcontractors and sub-processors falls below the European Commission’s template on Standard Contractual Clauses.
Continue Reading Windows Pain? German Report Casts Doubt on Microsoft GDPR Compliance

The answer is simple; delete it (unless retention is required by law or contract)! Virtually every company processes personal data in some form or fashion. The term “processing” is defined broadly under most data protection laws to mean “any operation or set of operations which is performed on personal data.” The general rule is that when a business’ processing of personal data is complete, the data must be returned or deleted. Typically, data deletion arises:

  • when required contractually (i.e., in data processing agreements to comply with applicable data protection laws such as Europe’s General Data Protection Regulation’s (“GDPR”) Article 28(3)(g));
  • when requested by data subjects exercising their “right to be forgotten”/deletion/erasure under applicable data protection laws.  This means that, in some cases, even if a company’s processing of personal data is incomplete, the processing can be cut short if a person requests that their data be deleted.; and/or
  • as a requirement to do business with other companies. In some instances, data deletion or a process for deletion must exist to do business with other entities. For example, Facebook requires companies to have a policy/process for individuals to request their data be deleted (even if there is no applicable law imposing this requirement on the company) if a company wants individuals to create an account on the company’s website using their Facebook credentials.

Continue Reading I’m Done With My Data, Now What?

This week, the new rules for personal data transfers to countries outside the United Kingdom (“UK”) went into effect. As of March 21, 2022, businesses transferring personal data from the UK to countries outside the European Economic Area (“EEA”) need to analyze their data flows and update their agreements involving data transfer practices to reflect the UK Data Protection Authority’s (“ICO”) new standard contractual clauses.

Under both the European Union’s General Data Protection Regulation (“GDPR”) and the UK Data Protection Act 2018, businesses are required to implement certain safeguards when transferring personal data outside the UK to countries “without an adequate level of data protection.” Standard contractual clauses (“SCCs”) are largely used to validate these types of transfers in the European Union as permitted under GDPR. However, following the “Brexit” transition period that concluded on December 31, 2020, GDPR no longer applied to the UK. Further, when the European Union revised SCCs in June 2021, the changes did not apply in the UK, and companies were left with confusion on how to effectuate personal data transfers outside the UK.
Continue Reading New Personal Data Transfers out of the UK: Like the GDPR, but Different

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The European Union’s (EU) General Data Protection Regulation (GDPR) sets out requirements for transferring personal data outside the European Economic Area. These requirements not only restrict the use and transfer of personal data, but also ensure that personal data is adequately protected with enforceable rights and effective judicial remedies. In 2020, the EU invalidated the EU-US Privacy Shield, a framework that many US companies relied on when transferring data. However, large tech companies, including Microsoft, have ensured compliance with the GDPR’s transfer requirements through the use of standard contractual clauses (SCCs). These SCCs are “pre-approved” by the European Commission to ensure that adequate protections and safeguards are in place for data transfers.

On May 6, 2021, Microsoft announced they were expanding its existing commitments to data privacy in the EU through a plan called the EU Data Boundary for the Microsoft Cloud (EU Data Boundary Plan). This pledge grows Microsoft’s data processing and storing capabilities in the EU by removing the need to move customer data outside the EU. Full implementation of this plan is set for the end of next year.Continue Reading Freezing the Cloud: Microsoft Takes a Hardline on Data Privacy in the EU

The European Commission has finally released the first updates to the standard contractual clauses (SCCs) required for certain cross-border transfers in more than 10 years. The new SCCs include versions for use between processors and controllers, as well as one for transfers to third countries.  These new SCCs mark the first change in such clauses since 2010 and in view of the Court of Justice of the European Union’s decision in  Schrems II.

We will write more on this…
Continue Reading Europe Commission Releases Updated Standard Contractual Clauses for GDPR Compliance