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The UK Government unveils its post-Brexit plans to shake up data protection laws

On 26 August 2021, in a move that puts it on a potential collision course with the EU, the UK Government made a number of announcements relating to the future of the UK’s data protection regime, with the stated intention of “seizing the opportunity” by “developing a world leading data policy that will deliver a Brexit dividend for individuals and businesses across the UK”.

The key points to note in relation to the UK Government’s announcement are the following:

  • the UK Government has set out its Mission Statement on the UK’s approach to international data transfers, announcing those countries that
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Ontario moves towards introducing new privacy law

Data Protection Report - Norton Rose Fulbright

Given global trends in the development of privacy laws and enforcement, Canada and several provinces are looking at modernizing their respective privacy regimes. Ontario’s new proposed privacy law, which would govern commercial activities more broadly than current legislation (i.e., our federal legislation, the Personal Information Protection and Electronic Documents Act (PIPEDA), and Ontario’s health privacy legislation, the Personal Health Information Protection Act (PHIPA)), is intended to enhance the public’s confidence in Ontario’s digital economy by recognizing individuals’ fundamental right to privacy and imposing strict compliance obligations and financial penalties on organizations doing business in Ontario.

On June 17, 2021, the … Continue Reading

China’s evolving data laws: PIPL likely to be passed soon

Norton Rose Fulbright - Data Protection Report blog

China’s much anticipated Personal Information Protection Law (PIPL) is very likely to pass this month after the conclusion of the 30th meeting of the Standing Committee of the National People’s Congress, which is to be held in Beijing on 17-20 August. This follows the enactment earlier this year of the Data Security Law (DSL), which will take effect on 1 September 2021.

The PIPL – which will add another layer of compliance obligations on processors of personal information – will supplement and further strengthen the developing regulatory regime, which consists of the 2017 Cyber Security LawContinue Reading

Subject Access Request: Germany’s highest court widens the scope of data subject access requests in Germany

Germany’s highest civil court, the Federal Court Of Justice (Bundesgerichtshof, the FCJ), has just published a decision specifying the scope of data subject access requests (DSARs). The FCJ held that Article 15 of the EU General Data Protection Regulation (GDPR) has a broader scope than previously understood in Germany. Pursuant to the court’s decision, Article 15 GDPR also covers information already known about the data subject, previous correspondence and notes of internal processes or internal communications related to the data subject.

The facts

The defendant was a life insurance company and  the claimant their insured. At first … Continue Reading

Hong Kong: Bill to amend the Personal Data (Privacy) Ordinance to combat doxxing acts was gazetted today

The Personal Data (Privacy) (Amendment) Bill 2021 (the Bill) was gazetted today, 16 July 2021.

The Bill aims to combat doxxing acts through (i) criminalisation of doxxing acts; (ii) empowering the Privacy Commissioner for Personal Data to conduct criminal investigation and institute prosecution for doxxing cases; and (iii) conferring on the Commissioner statutory powers to demand the rectification of doxxing content. The details of the Bill are summarized in our earlier post.

The government has submitted the brief on the Bill to the Legislative Counsel on 14 July 2021. It is expected that the Bill would be introduced into … Continue Reading

EDPB cautiously welcomes UK adequacy finding

Norton Rose Fulbright - Data Protection Report blog

Yesterday, the European Data Protection Board (EDPB) published its opinion on the European Commission’s draft Decision that the UK ensures an adequate level of protection for personal data (the Opinion).  The Opinion was adopted by the EDPB on 13 April 2021, a couple of days before the Opinion’s official publication on 15 April 2021.

The EDPB recognises that the UK’s adequacy assessment is unique given it was an EU Member State until very recently and therefore acknowledges there are many areas of convergence between the UK and EU regimes.   However, much of the Opinion examines a number of “challenges” with … Continue Reading

EU Commission draft UK Data Protection Adequacy Decision published

Data Protection Report - Norton Rose Fulbright

Following nine months of assessment of the UK’s data protection laws (including the rules on access to data by public authorities), the European Commission has today published its draft decision on the adequate protection of personal data by the United Kingdom. The draft decision can be found here.

The draft decision is welcome news to the UK government, which has stressed that adequacy will provide certainty for businesses and enable continued cooperation between the UK and EU.

The European Commission’s statement highlights that EU law has shaped the UK’s data protection regime for decades; and that whilst the … Continue Reading

101 Problems and Schrems Ain’t One

NT Analyzer blog series, cookie

Eureka! After burning the midnight oil, we’ve built an automated scanner to identify and sort the Schrems II risk of data flows for further legal handling. The scanner uses more than 20 different data points derived from network metadata to scan and classify data flows based on mass surveillance risk under the NSA’s so-called “Upstream” and “Downstream” data collection programs. This is important to do because not all endpoints are created equal in this regard.

The main questions facing companies at this point are:

  • Do my websites and mobile apps, when used in the EU, transmit data to the US,
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Algorithmic Decision-making and the UK ICO’s Guidance on AI

Algorithmic decision-making has been in the news of late. From Ofqual’s downgrading of students’ A-level results[1] to the complaint lodged by None of Your Business’ against the credit rating agency CRIF for failing (amongst other things) to be transparent about the reasons why a particular applicant had been given a negative rating[2]. We have been reminded of the potential backlash that could result from decisions that are perceived as incorrect or unfair by algorithms where the workings of which are largely unknown to the individuals they affect. This presents challenges for organisations which are increasingly adopting Artificial … Continue Reading

Key takeaways for the private sector from The Bridges v South Wales police facial recognition case

On 11 August 2020, the Court of Appeal (CA) handed down its judgement in the case of R (on the application of Edward BRIDGES) v The Chief Constable of South Wales Police.  The court found that the use of automated facial recognition technology (AFT) by South Wales Police (SWP) was unlawful and did not comply with Article 8 of the European Convention on Human Rights (the right to respect for private and family life) (the Convention).

Whilst this judgement concerned the use of AFT in the public sector, the case provides interesting  … Continue Reading

An “enhanced” Privacy Shield is being negotiated – third time a charm?

On 10 August, the European Commission and the US Department of Commerce confirmed that talks have begun between the EU and US for an “enhanced” Privacy Shield.

This will be the third attempt to revise this framework, following the invalidation of Safe Harbor in 2015 and Privacy Shield in July 2020. Third time a charm? We’re not so sure.

By way of recap, in Schrems II, the court made clear that Privacy Shield was invalid for three main reasons:

  1. US surveillance rules are disproportionate
  2. There is a lack of proper oversight over US surveillance programmes
  3. EU individuals do not
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Schrems II landmark ruling: Privacy Shield is invalid, Standard Contractual Clauses are valid but court puts obligations on parties and authorities

The Court of Justice of the European Union (CJEU) has today published its decision in the landmark case, known as Schrems II. While Privacy Shield has been completely invalidated, the Standard Contractual Clauses (SCCs) remain valid, but the court has emphasised obligations on the parties to the SCCs  and Data Protection Authorities which have the potential to restrict when they can be used.

Here is a very short first summary:

  1. Privacy Shield is invalid.  This is on the basis that the access and use of EU personal data by US authorities are not restricted in a way
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Singapore’s Public Consultation on proposed changes to the Singapore Personal Data Protection Act

On 14 May 2020, the Singapore Ministry of Communications and Information (MCI) and the Personal Data Protection Commission of Singapore (PDPC) announced a public consultation (the Public Consultation) on the draft Personal Data Protection (Amendment) Bill (the Draft Bill) and related amendments to the Spam Control Act (SCA). The Public Consultation will take place from 14 May 2020 to 28 May 2020.

The Draft Bill is the culmination of a series of consultations between the MCI, PDPC and public and industry stakeholders over the past three years. In this post, we briefly … Continue Reading

Contact tracing apps: A new world for data privacy

May 12, 2020

Norton Rose Fulbright today launched its survey analysing regulatory and policy issues applicable to COVID-19 contact tracing and related tracking technology across 18 jurisdictions.

The global survey explores key issues across Australia, Canada, China, France, Germany, Hong Kong, Italy, Indonesia, Russia, Poland, Singapore, South Africa, Thailand, The Netherlands, Turkey, UAE, UK and US, including:

  • How are governments using technology to monitor and control the spread of COVID-19?
  • What are the major privacy concerns in relation to the utilisation of apps by both governments and private sector organisations?
  • How will the apps collect data and how is the
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How contact tracing apps in Asia are being used to fight COVID-19 – is the reward worth the risk?

Data Protection Report - Norton Rose Fulbright

The COVID-19 pandemic has seen governments across the world restricting civil liberties and movement to unprecedented levels. To aid the safe lifting of current public health restrictions, new technologies are being developed and rolled out to automate labour intensive tasks critical to containing the spread of the virus, such as contact tracing.

Contact tracing applications essentially work using either Bluetooth technology or GPS to log every time two or more users are close to each other for a certain period of time. If a person is diagnosed with COVID-19, other users who were close to that person can then be … Continue Reading

NYDFS Requires COVID-19 Plans by April 9

Norton Rose Fulbright - Data Protection Report blog

On March 10, 2020, the New York Department of Financial Services (NYDFS) issued guidance to all of its regulated institutions engaged in virtual currency business activity, requiring them to have plans for preparedness to manage the possible operational and financial risks posed by the COVID-19 pandemic. NYDFS requires the plans to be submitted by Thursday, April 9, 2020.… Continue Reading

Reflecting on APAC Data Protection and Cyber-security Highlights for 2019 (and what lies ahead!)

Norton Rose Fulbright - Data Protection Report blog

2019 saw continued growth and change in data protection and cyber-security across the Asia-Pacific. Following the implementation of the GDPR in May, 2018, many jurisdictions moved to review and strengthen existing data privacy and cyber-security laws. In addition, 2019 saw regulators publishing findings in respect of some of the largest data incidents of 2018. We have set out below the key highlights of the year and what to look out for in 2020.… Continue Reading

Schrems II: AG deems SCCs valid but comes up with difficult new obligations and expresses “doubts” over privacy shield

What has happened?

Yesterday, the Advocate General (“AG”) concluded that, in his opinion, the EU Standard Contractual Clauses (“SCCs”) are a valid mechanism to transfer personal data outside of the European Economic Area (“EEA”). However, the AG suggested new obligations for those using SCCs. They need to examine the national security laws of the country of the data importer to determine whether they can in fact comply with the terms of SCCs.… Continue Reading

New York’s Breach Law Amendments and New Security Requirements

Although California has recently captured the lion’s share of attention with respect to privacy and security, on October 23, 2019, New York’s amended security breach law goes into effect, and on March 1, 2020, new security safeguards go live (N.Y. S.B. 5575). Anyone with personal information about a New York resident is potentially affected by these far-reaching amendments.

Breach Law Changes

Readers may recall that New York’s security breach notification law (N.Y. Gen. Bus. Law § 899-aa) differs from most states’ law in several ways including (1) using separate definitions of “personal information” and “private information;” and (2) providing factors … Continue Reading

Office of Privacy Commissioner Says It’s Status Quo on Consent Requirements for Data Processing Transfers

On September 23, the Office of the Privacy Commissioner of Canada (OPC) announced, following consultation with stakeholders, that it will maintain the position set out in its 2009 guidelines that an organization’s transfer of personal information to a third party for processing, including a transfer across the Canadian border, is a “use” of that personal information, and not a disclosure that requires separate consent.

This announcement brings at least temporary clarity to an issue that resulted in a tumultuous summer for organizations and the OPC alike as everyone grappled with the potential consequences of the OPC’s June … Continue Reading

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