Why you should be concerned by the GDPR even if your company is not located in the EU

The European personal data protection directive of 24 October 1995 applied to data processing carried out by companies, i.e. data controllers, located within the European Union. Data processing activities carried out by data controllers located outside of the EU were generally not subject to the provisions of the European directive as transposed into the national laws of the Member States. (1) With the development of technology and of online services around data, many companies located outside of the European Union, such as Google, Amazon, Facebook or Apple (the “GAFA”) for example, collect and process data from Europeans and “escape” the European regulations, even though data transfers to these American companies can be subject to the Privacy Shield principles.

Now, data and more specifically personal data is at the core of the digital economy. It then became necessary to update the European personal data laws to take into account the technology developments that have occurred since the 1995 directive, and assure a high and homogenous level of protection to personal data. This was done with the General Data Protection Regulation (GDPR). This European text was adopted on 27 April 2016 after over four years of intensive debates. It will become applicable on 25 May 2018. (2)

One of the purposes of the GDPR is to take into account, cases where several data controllers and/or processors located in different regions in the world are involved in data processing; but also cloud computing and big data services (with servers installed and data collected in several regions); and the activities carried out by the GAFA, so that the personal data of the people living in Europe remain protected regardless of where the data controller is located in the world.

The scope of the regulation covers not only businesses in the European Union but also non-EU companies targeting the European market. These non-EU companies are therefore concerned by the GDPR and must get compliant with these new rules.


1. The GDPR is applicable in Europe and beyond

The 1995 directive had to be transposed into national law of the Member States. These national data protection laws did however include differences between the Member States, certain countries having opted for a strict transposition of the European directive, whereas other countries chose a more liberal approach.

The GDPR will become enforceable directly in all the European Union. Its provisions will apply almost identically in all the Member States, except for a few provisions which may differ slightly among the Member States. (3)

But where the directive had moderate impact outside of the EU, the regulation will apply not only within the EU but will also produce extra-territorial effects, beyond the EU borders. (4)

    1.1 Application within the European Union

The regulation shall apply to any processing of personal data in the context of the activities of an establishment of a controller or a processor in the Union, regardless of whether the processing itself takes place within the EU.

The establishment located in the EU implies the effective and real exercise of activity through “stable arrangements”. However the establishment is not subject to any particular legal form. It may be the headquarters, or a subsidiary or even a branch of a company itself located outside of the Union.

The processing may be carried out in or outside the EU. With this provision databases hosted via a cloud computing service can be governed by the GDPR, regardless of where the servers are actually installed in the world.

    1.2 Extra-territorial application

The regulation shall also apply to processing regarding individuals located in the EU, carried out by a data controller or a processor not established in the Union where the processing activities are related to offering goods (e.g. e-commerce activity) or services (e.g. mobile applications, cloud hosting services) to such data subjects, whether connected to a payment or free of charge.

To establish whether the data controller or the processor is actually targeting the European market by proposing goods or services to persons located in the EU, one must gather a number of elements such as the use of a European language or of a currency such as the euro and the fact that the products or services can be delivered in Europe. The mere accessibility of the web site of the company in Europe, or an email address are not sufficient to establish that that company targets the European market.

The data processing of persons located in the Union by a company, controller or processor, which is not established in the Union is also subject to the GDPR when the purpose of such processing is to monitor the behaviour of these persons, if such behaviour takes place in the EU. This provision is mainly about online profiling, “particularly in order to take decisions concerning her or him or for analysing or predicting her or his personal preferences, behaviours and attitudes.” (5)

One should also note that these provisions shall apply to data controllers and to processors. The latter should also take all necessary measures to comply with the GDPR.

The GDPR is not limited to controllers and processors located in the European Union. Its geographical scope reaches beyond the EU borders whenever personal data of European data subjects are processed.


2. What are the consequences for non-European businesses?

Companies that have no establishments in the European territory but that target the EU for their commercial activities (see criteria above), and that in doing so collect and process personal data of European subjects will therefore have to comply with the GDPR, the deadline being 25 May 2018.

    2.1 The designation of a representative in the Union

Beyond the GDPR compliance work to be carried out, controllers and processors that have no establishment in the EU must designate a representative in the EU, “in writing”. (6)

This representative must be established in one of the Member States where the data subjects, whose personal data are processed in relation to the offering of goods or services to them, or whose behaviour is monitored, are located. The representative, as the agent of the controller or processor shall be the point of contact for the supervisory authority and for the data subjects having questions about the processing. The controller and processor shall however remain primarily legally liable with regards to GDPR compliance and its due application.

It must be noted that no representative must be designated in the following cases:
processing which is occasional,
which does not include, on a large scale, processing of special categories of data as referred to in Article 9(1) or processing of personal data relating to criminal convictions and offences referred to in article 10, and
and is unlikely to require a privacy impact assessment (PIA) subject to article 35 of the GDPR.

Also, non-European public authorities or bodies are not concerned by the designation of a representative.

    2.2 The United Kingdom after Brexit

Once the United Kingdom is no longer a Member State, the European regulation will no longer apply to it. However, the UK government has declared that they wanted to pass a new law, repealing the Data Protection Act 1998 currently in effect, so as to include the GDPR into English law.

The purpose of this Bill is to reassure businesses after Brexit, on the ability to keep transferring personal data between the UK and the EU. In doing so, the UK wants to ensure that its Data protection law will be considered as offering an adequate level of protection by the Brussels Commission, allowing businesses to keep transferring personal data between the UK and the EU without restrictions. (7)

    2.3 GDPR compliance

The European regulation includes several new principles and existing rights that were reinforced. These principles and rights must be integrated in the internal procedures of businesses processing personal data of Europeans. This can be a costly, burdensome and time consuming process. These principles can be divided up between the rights of data subjects and the obligations of the controllers and processors.

a) The rights of data subjects
    - The conditions to obtain consent from the data subjects are reinforced (art. 7): the terms regarding consent must be drafted in clear and explicit language;
    - The right to be informed is modified toward more transparency and simplification (art. 12, 13 and 14)
    - Data portability (art. 20) permits data subjects to request the controller to recover or to transfer their collected data to a new data controller;
    - For online services targeting children (i.e. children below 16, or 13 in certain Member States), processing children data will be subject to the consent or authorisation of the person having parental authority. (art. 8)

b) The obligations of the controllers and processors
    - Automated process and profiling techniques will be regulated. (art. 22) Such process will be authorised under certain conditions and provided the data subject has given his consent;
    - According to the accountability principle, the controller must implement clear and accessible internal rules to guarantee and demonstrate compliance with the regulation (art. 5 and 24);
    - During the development of new products or services, the controller must include personal data protection by default in the definition of the processing system and within the data process  (“privacy by design” principle) (art. 5 and 25);
    - The GDRP imposes stronger data protection security rules. Security breaches must be notified by all controllers, regardless of their main activity (art. 5 and 32 to 34);
    - A data protection officer (DPO) must be appointed in all companies where the core activities of the controller or processor consist of processing data which require monitoring of data subjects on a “large scale” or processing of specific categories of data on a “large scale” (art. 37, 38 and 39).

Finally, the GDPR includes the possibility for the supervisory authorities to impose more stringent sanctions. (art. 83) Depending on the type of infringement, the supervisory authorities can impose administrative fines up to 10 million euros or 2% of the total worldwide turnover of the company during the preceding financial year, whichever is higher, or up to 20 million euros or 4% of the total worldwide turnover of the company during the preceding financial year.
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(1) See article 4 “National law applicable” of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data

(2) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation)

(3) For example, each Member State can choose the minimum age for a child to give his/her consent, between 13 and 16 years (art.8).

(4) See GDPR, recitals 22 to 24 and article 3 “Territorial scope”

(5) Recital 24

(6) GDPR, article 27

(7) “UK Government announces proposals for a new Data Protection Bill”, in Technology Law Dispatch, 16 August 2017

(8) For a more detailed analysis of the GDPR, see our previous articles on this matter: New European General Data Protection Regulation (GDPR): the compliance clock is ticking, How to prepare for GDPR compliance and be ready by May 2018


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September 2017

How to prepare for GDPR compliance and be ready by May 2018

The General Data Protection Regulation (GDPR) will come into effect in the European Union in less than a year from now, on 25th May 2018. (1) The GDPR is a thorough and complex reform of data privacy law, which means that companies have to get organised to be compliant and ready by May 2018.

There are many differences between the existing European data privacy legal system based on the 1995 Data Protection directive and the new GDPR. Whereas, the 1995 Data Protection directive had to be transposed into the legal systems of each member-state, with national data protection laws which didn’t come into effect at the same time (France transposed the 1995 directive in 2004!) and with some differences between the national data protection laws, the GDPR will apply (almost) identically across the European Union from 25th May 2018.

The 1995 Directive was outdated regarding certain processing activities not available at the time, or regarding the development of the role of processors, especially those providing cloud computing services. The GDPR takes into account the evolution of technology and of data processing activities and aims to reinforce the rights of the individuals (data subjects) on their personal data with clearer rules regarding consent for data collection and processing and more stringent obligations on the data controllers and processors.

With the GDPR, companies will be subject to a new “accountability” regime. Accountability under the GDPR includes the implementation of new procedures such as the privacy-by-design principle which implies that data privacy must be included into the design stage of a new product or service; data privacy impact assessments when new data processing is likely to result in a high risk for the rights of the data subjects; the obligation to maintain a record of processing activities listing the processing and procedures implemented and the obligation to notify personal data breaches to the supervisory authority (following a security breach or a cyber attack for example).

The fines for breaching GDPR obligations will be much higher than before since depending on the nature of the breach, administrative fines may reach between 10 million euros or 2% of the worldwide revenue of the company and 20 million euros or 4% of the worldwide revenue of the company…

The data privacy agencies of the member-states, and the members of the Article 29 Working Party (representatives of the data privacy agencies of the member-states) are working actively to help companies get prepared for GDPR. For example, the French data privacy commission (CNIL) has published a plan to help companies get organised to prepare GDPR compliance. And the members of the Article 29 Working Party (WP29) have adopted guidelines providing more detailed information on the new principles of the GDPR.


1. The compliance plan recommended by the French data privacy commission

The French data privacy commission (CNIL) has published a plan to help companies work on GDPR compliance. (2) This plan is comprised of six steps, as follows:

    - Step 1: Appoint a “compliance pilot”
Given the complexity of implementing a GDPR compliance plan, an individual - or depending on the size of the organisation, a dedicated task force - should be specifically appointed to drive this phase. This individual, who may be an existing or future data privacy officer (DPO), or an external consultant, shall have several tasks, including informing, advising and consulting the internal teams. He/she should also perform internal audits and should be key in organising and coordinating the compliance tasks to be performed.

    - Step 2: Map out the processing activities
The compliance team should carry out an inventory of the data processing activities carried out by the company and record them. This will allow the compliance team to assess the practical impacts of the GDPR on the data processed by the company.

    - Step 3: Prioritise the tasks to be carried out
Based on the types of data processing activities, the team will then be able to identify the compliance tasks to be implemented. These tasks should be prioritised, taking into account the risks of the processing on the rights and freedoms of the data subjects.

    - Step 4: Manage risk
If the team has identified data processing activities that are likely to generate high risk on the rights and freedoms of the data subjects, a data privacy impact assessment (DPIA or PIA) must be carried out for each such processing. Companies can use the PIA guidelines to help them implement these new procedures (see below).

    - Step 5: Develop or update your internal procedures
The company’s internal procedures will have to be updated to be able to apply a high level of protection to personal data. These procedures must protect data at any time taking into account all the events which may happen during data processing (such as a data breach, managing  correction or access requests, modification of the data collected, etc.).

    - Step 6: Document compliance
To be able to prove that the company complies with the GDPR, the necessary documents must be drafted and regularly updated. These documents shall include the company’s internal procedures, data privacy impact assessment, internal audit reports, etc.


2. The Article 29 Working Party guidelines

The WP29 has published several support documents to help with GDPR compliance. The purpose of these documents is to clarify the new principles that must be implemented by the companies by May 2018. At the end of June 2017, the following guidelines were published:

    - Guidelines on Data Protection Impact Assessment (“DPIA” or “PIA”) and determining whether processing is “likely to result in a high risk” for the purposes of Regulation 2016/679
These guidelines provide details on the types of processing activities that should trigger a privacy impact assessment, the existing methods to carry out a PIA, the rules governing the release of a PIA and/or notification to the supervisory authority and when the supervisory authority should be consulted in case of a potentially risky processing. Typically, a PIA will include the following four features: i) a description of the proposed processing and its purpose; ii) an assessment of the necessity and proportionality of the processing; iii) an assessment of risks to data subjects; and iv) the measures to address the risks and demonstrate compliance with the GDPR.

The data protection impact assessment principle is defined under article 35 of the GDPR. PIAs are one of the mechanisms included in the principle of accountability. When performing a PIA, data controllers adhere to the GDPR and can demonstrate that appropriate measures have been developed to ensure GDPR compliance. Failure to carry out a PIA is subject to an administrative fine of up to 10 million euros or 2% of the worldwide revenue of the company for the preceding year.

    - Guidelines on Data Protection Officers (“DPOs”)
These guidelines provide details on how a Data protection officer should be appointed, as well as the role and responsibilities of the DPO.

Although this role is not new, the appointment of a DPO was not mandatory under the 1995 Directive. To be compliant with the GDPR, certain companies, data controllers and processors, will have to appoint a DPO. The role and responsibilities of the DPO are described under articles 37 to 39 of the GDPR.

The DPO allows companies to ensure GDPR compliance (including, for instance, for internal audits, to act as a liaison between the different internal departments, and with the data subjects). However, DPOs are not liable in case of non-compliance to the GDPR. The data controller or the processor are responsible for GDPR compliance and implementation.

    - Guidelines on the right to data portability
These guidelines define the data portability principle, identify the main aspects of this new right, identify when this right should apply, define how the rules concerning the data subjects apply to data portability, and define how the data should be conveyed to the data subject or to a new data controller.

Data portability is slightly different from the right of access under the 1995 directive. Data portability allows the data subjects to receive the data provided to the data controller in a structured and machine-readable format, and to transfer this data to a new data controller. The right to data portability will typically be used when a consumer switches service providers. The right to data portability is defined under article 20 of the GDPR.

    - Guidelines for identifying a controller or processor’s lead supervisory authority
The GDPR set up another new principle: the lead supervisory authority, to take into account transborder data processing.

These guidelines identify the supervisory authority competent for transborder processing, especially when the principal place of business of the data controller is different from its European headquarters, when several companies within a multinational group of companies are concerned or when there are several joint data controllers. The issue of data processors is also addressed by the guidelines.


     Other guidelines are being developed and should be published before the end of 2017. These include guidelines on certification, guidelines on data privacy breach notifications, guidelines on consent by the data subjects, and guidelines on profiling.
 

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(1) Regulation (EU) 2016/619 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation)

(2) Available on the CNIL website (in French)

(3) The WP29 Guidelines are available on the CNIL website (in English) : Guidelines on Data Protection Impact Assessment (DPIA) and determining whether processing is “likely to result in a high risk” for the purposes of Regulation 2016/679 ; Guidelines on Data Protection Officers (“DPOs”) ; Guidelines on the right to data portability ; Guidelines for identifying a controller or processor’s lead supervisory authority


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August 2017

From science fiction to law: the European Parliament proposes a legal framework for robotics

On 16 February 2017, the European Parliament adopted a resolution which includes a series of recommendations to the European Commission regarding civil law rules on robotics. (1) With this document, the Parliament calls on the Commission to submit a proposal for a directive. These recommendations have been under review for two years, a time necessary to conduct a rich and thorough reflection on a multi-faceted matter which will deeply disrupt our civil, industrial and economic societies.

Robotics includes not only robots and artificial intelligence (“AI”), but also bots, drones, autonomous vehicles. This area raises ethical and legal questions which must be addressed now at a supranational level, especially since robotics is already present in a number of industries, such as the automotive and electronics industries.

The resolution of the Parliament stresses the necessity to define an ethical framework around the development, programming and use of robots, to define a legal framework around robotics to allow a harmonised and legally secured development, and to define new legal liability principles for actions performed by smart robots.


1. An ethical framework based on Asimov’s laws of robotics

Good science fiction has often been predicting the evolution of technology and society. Numerous technology tools appear in our daily environment which are directly inspired from communication “gadgets”, from the Star Trek saga (smart phones and connected things), to motion pictures such as Minority Report and Moneyball (predictive analysis), or 2001, A Space Odyssey and I, Robot (smart robots). (2)

Prior to these movies, Isaac Asimov, the famous 20th century science fiction writer, set down the three laws of robotics governing the relationship between man and robot:
    1. A robot may not injure a human being or, through inaction, allow a human being to come to harm;
    2. A robot must obey the orders given it by human beings except where such orders would conflict with the First Law;
    3. A robot must protect its own existence as long as such protection does not conflict with the First or Second Laws. (3)

These laws have inspired the members of the European Parliament to establish the foundation of their recommendations on a preliminary draft of European civil law on robotics, reminding “the intrinsically European and universal humanistic values that characterise Europe’s contribution to society”. These laws are directed primarily at the designers, producers and operators of robots.

Based on these principles, the European Parliament recommends to develop a clear, precise and efficient ethical framework applicable to the design, development, production, use and modification of robots.

Robots must serve humanity especially by performing repetitive, difficult or dangerous tasks. But robotics, through its social, medical and bioethical implications also comes with societal risks for humans, including in the areas of liberty, safety, health, privacy and personal data protection, integrity and dignity.

This resolution takes a practical approach by integrating a Charter on robotics comprised of a Code of ethical conduct for robotics engineers, a Code for research ethics committees (REC), and licences for designers and for users.

The Code of ethical conduct for robotics engineers covers all R&D activities and recalls the strict obligation for researchers and designers to respect the dignity, privacy and safety of humans. This ethical framework should be based on principles of beneficence (robots should act in the best interests of humans), non-maleficence (robots should not harm a human), autonomy (the capacity to make an informed, un-coerced decision about the terms of interaction with robots), and justice (fair distribution of the benefits associated with robotics; affordability of homecare and healthcare robots). The Code also defines principles of fundamental rights, rights of precaution, transparency, safety, reversibility and privacy.

The Code for research ethics committees (REC) stresses the principle of independence to avoid conflicts of interest between the researchers and those reviewing the ethics protocol, and between the reviewers and the organisational governance structures. The Code also defines the role and constitution of a research ethics committee and monitoring rules.


2. The foundations of a legal framework- to define the notion of “robot” and support the development of cyber technology

The resolution also includes several recommendations aimed at setting the ground rules of a harmonised European legal framework adapted to robotics. Such legal rules must permit the cross-border use of robots (principle of mutual recognition), thereby avoiding fragmentation of the European market.

    - The notion of “smart robot”
The Parliament calls on the Commission to propose common definitions within the European Union regarding the notions of cyber physical systems, autonomous systems and autonomous and smart robots, and their sub-categories. A “smart robot” would include the following characteristics:
. the acquisition of autonomy through sensors and/or by exchanging data with its environment (inter-connectivity);
. self-learning capacity from experience and by interaction;
. at least a minor physical support;
. the capacity to adapt its behaviour and actions to its environment; and
. absence of life in the biological sense.

A Community system of registration for certain “advanced” categories of robots could be created for purposes of traceability.

    - Intellectual property rights
The Parliament draws attention to the necessity to address the issue of intellectual property rights in robotics through a horizontal and technologically neutral approach applicable to the different sectors in which robotics could be used.

    - Right to privacy and personal data protection
Extending the right to privacy and personal data protection to the relationship between humans and robots is fundamental. Indeed, the robots used by individuals in a domestic environment (autonomous vehicles, domestic robots, care robots and medical robots) will collect and process personal data. These robots will usually be connected, making it easy to analyse and shared the data collected.

The Community rules on the right to privacy as well as the provisions of the General Data Protection Regulation (GDPR), especially the rules regarding systems security, must be extended to robotics. However, such rules must be complemented, where necessary, to take into account the specificities of robotics.

    - Standardisation, safety and security
The development of robotics includes the creation of technical standards that must be harmonised internationally to avoid dividing up the European market, and foster a high level of product safety and consumer protection. Communication between robots shall also require the adoption of open and interoperable standards.

To avoid the fragmentation of the European market, testing, certification and market approval in a Member State should be recognised in the rest of the EU.

    - Education and employment
The development of the use of robots will create a new industrial and societal revolution. Even though its actual impact on employment is not fully known, less skilled jobs will be more severely affected as well as labour-intensive industries. Automation will lead to more flexibility of skills. For that matter, the Parliament calls on the Commission to monitor medium and long-term job trends as a result of the increased use of robots, and to support education to digital skills so as to align the job market with the demand.

Finally, the Parliament recommends the creation of a designated EU Agency for Robotics and Artificial Intelligence to provide its technical, ethical and regulatory expertise at the Community and National levels.


3. The issue of legal liability: can an autonomous robot be considered as a person responsible for its actions?

An autonomous robot (having the ability to adapt and learn) can make decisions and implement them independently, which means that its behaviour includes a level of unpredictability. Such autonomy is however merely technical. Also, the more autonomous a robot is, the less it can be considered as a simple tool controlled by a human (manufacturer, operator, owner). Therefore, a specific status - the electronic person - could be created for autonomous robots.

The current legal liability rules are not adapted to autonomous robots, which cannot be held liable  in case of damages caused to a third party. Under the current state of the law, humans are liable, i.e. the manufacturer (product liability), the operator, the owner or the user of the robot (liability for damages).

The Parliament calls for the Commission to review liability laws to determine the regime that will be more adapted to this matter, i.e. either a regime of strict liability (ability to prove the damage, the defect in the robot and the causality between the defect and the damage), or a liability regime based on risk management (ability to manage risk and its consequences).

The liability of the parties involved should be proportional to the level of instructions given to the robot and its degree of autonomy (the greater the robot’s autonomy, the greater the responsibility of its trainer). In parallel, a specific insurance system for robots should be created.

    As a conclusion, this resolution by the European Parliament manages to provide practical orientations about a very complex matter, especially since we don’t yet know the full extent of the impacts of robotics on our society. This document provides a good overview of the issues raised by robotics. This resolution draws the major trends of a legal framework with a purpose to secure the development of robotics and of its multiple uses. It lays necessary ethical foundations and tries to contain fears related to the consequences of an uncontrolled development of AI. The ball is now in the camp of the European Commission to propose a directive within a reasonable timeframe so that Europe is not overtaken by the evolution of robotics which is happening very fast.


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(1) “European Parliament resolution of 16 February 2017 with recommendations to the Commission on Civil Law Rules on Robotics” (2015/2103(INL))

(2) These movies are mostly adapted from books: Minority Report (by Philip K. Dick, published in 1956!); Moneyball (The Art of Winning an Unfair Game, by Michael Lewis, published in 2003); I, Robot (by Eando Binder, published in 1939 and re-written by Isaac Asimov in 1950)

(3) Asimov’s three laws of robotics appear in “Runaround”, published in 1942.

Photo © ClaudeAI.uk (https://claudeai.uk/ai-blog/ )

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May 2017

New European General Data Protection Regulation (GDPR): the compliance clock is ticking

After over four years of debates at the European level, the General data protection regulation (GDPR) was finally passed on 27 April 2016. The new regulation will apply in all the European member states in two years, as from 25 May 2018. (1) The compliance countdown is now running for all organisations processing personal data.

The GDPR is part on a more global reform of European data protection law - the “data protection package”, which also includes a directive on data transfers for policing and judicial purposes, i.e. personal data processed by the European police and judiciary authorities.

The GDPR will repeal Directive 95/46/EC of 24 October 1995 on the protection of personal data. The new text will be the base of our regulation of personal data protection in Europe, with a single set of rules (with a few exceptions).

The regulation is based on existing data protection law. The main principles regarding the processing of personal data, such as the principles of lawfulness, fairness and transparency of the data process, the principles of specified and legitimate purpose, of adequacy of the process, of data conservation for a limited duration and of data security are preserved. (art. 5) But because of the technical and behavioural evolutions that have occurred in our society since the 1995 Directive, it was important to adapt and complement the existing principles and implement more homogenous rules within the European Union. This is however a complex text comprised of 173 recitals and 99 articles, when the directive included only 34 articles.

We summarise below the main provisions of the GDPR regarding the rights of natural persons, followed by the rights of corporations (as data controllers or processors).


1. The rights of natural persons under the GDPR

Several provisions of the GDPR reinforce the existing rights on the data of natural persons (“data subjects”). We identified the major evolutions as follows:

    - The conditions to obtain consent from the data subjects are reinforced (Art. 7): the terms regarding consent must be drafted in clear and explicit language. The data subject must be able to withdraw his consent at any time. The burden of proof of obtaining the data subject’s consent rests on the data controller who must be able to show that the data subject did give his consent to the process.

    - The right to be informed is modified toward more transparency and simplification (art. 12, 13 and 14): the information must be concise, clear, intelligible and easily accessible. It must be drafted in clear and legible terms, especially when targeting children.

    - The GDPR confirms the “digital right to be forgotten” (or right to erasure) as defined by the European court of justice (ECJ) in the Google Spain decision of 13 May 2014. (art. 17) The data subject can request the controller to erase his personal data without undue delay. Data erasure is however subject to certain conditions -including regarding the right to information, and is not automatic. These conditions and limitations to the right to be forgotten have been further defined since 2014 by subsequent case law.

    - Data portability is a new right for the data subjects. (art. 20) Except in certain situations, data subjects can request the controller to recover or to transfer their collected data to a new data controller (e.g. transfer to a similar service proposed by a competitor). To prevent blocking or circumventing this obligation, the controller must transfer the data in a structured, commonly used, machine-readable format.

    - Finally, the GDPR includes the principle of specific data protection rules for children below 16 years of age. (art 8) Children are intensive users of internet services (social networks, chat, SMS, MMS) but are not necessarily aware of the concept of personal data and of how their data can be used by third parties. The GDPR identifies children as a distinct category of data subjects and recognises the need to provide specific protection to their data. The 38th recital provides that children must receive specific protection from organisations using their personal data for marketing purposes or user profile set ups. For online services targeting children (i.e. children below 16, or 13 in certain member states), the processing of children data will be subject to the consent or authorisation of the person having parental authority. The controller must implement “reasonable” means, taking into account available technology, to ensure the effectiveness of such parental consent.


2. The rights of data controllers and processors under the GDPR

Regarding the rights of the controllers and processors (corporations and any organisation processing personal data), we note a tendency toward simplification of formalities, but also toward more stringent obligations. Also, the level of the financial penalties was raised substantially. The major evolutions are as follows:

    - Automated process and profiling techniques - which are used increasingly with big data projects for example, will be regulated. (art. 22) Such process will be authorised under certain conditions and provided the data subject has given his consent.

    - According to the accountability principle, the controller must implement clear and accessible internal rules to guarantee and demonstrate compliance with the regulation on process inventory, security, and if applicable, compliance with the preliminary formalities and with the appointment of a data protection officer. (art. 5 and 24)

    - During the development of new products or services, the controller must include personal data protection by default in the definition of the processing means and within the data process  (“privacy by design” principle). (art. 5 and 25)

    - The GDPR creates a new “joint controllers” concept (art. 26), to take into account the technical evolutions, especially with cloud computing services under which the entity collecting the data no longer controls the technical data process. Two data controllers may then co-exist, i.e. the entity collecting and using the data, and the entity which determines the technical means of the data process (often the hosting service provider or the cloud service provider, as a subcontractor of the data collector/controller). In case of joint liability, the joint controllers must define the respective scopes of their liability in performing their obligations, especially concerning the data subjects. The liability of the subcontractor is now acknowledged at the same level as its client’s.

    - The GDPR withdrew the preliminary filing obligation for new data processing (art. 30) except for data transfers outside of the European Union which are subject to a specific regime. In return, the controller must (i) either keep an internal record of processing activities listing the data process implemented, (ii) or consult the supervisory authority prior to launching a new data process if such process requires an impact assessment and includes specific risks.

    - The GDRP imposes stronger data protection security rules. Security breaches must be notified by all controllers, regardless of their main activity. (art. 5 and 32 to 34) For example in France, this notification duty is currently limited to communications operators and to “vitally important operators” (OIV) i.e. operators of critical infrastructures or services.

    - A data protection officer (DPO) must be appointed in all companies where the core activities of the controller or processor consist of processing data which require monitoring of data subjects on a “large scale” or processing of specific categories of data on a “large scale”. (art. 37, 38 and 39) The data protection officer (which in France will replace the current “correspondant informatique et libertés” - CIL) must be a competent law and personal data protection professional. This person may be employed by that organisation or be a third party consultant.

    - The rules regarding data transfers outside of the European Union won’t change substantially. (art. 44 to 50) As a principle, all data transfers outside of the EU remain prohibited. This prohibition may be waived for transfers to a third country offering an adequate level of protection, as defined by the European Commission and for transfers to companies in third countries, provided one of the available contractual tools has been implemented between the exporting controller and the importing processor (EU model contractual clauses, Binding corporate rules (BCRs) or code of conduct). It is still unclear whether existing adequacy decisions will be upheld for all third countries currently listed. Since the GDPR includes new and more stringent provisions, the Commission may decide to reassess whether these countries are still providing an adequate level of protection under the new Regulation.

    - Companies that operate in several member states will designate a supervisory authority as the lead competent authority, for cross-border processing and to handle complaints. (art. 56) This lead supervisory authority shall be the authority of the seat of the main establishment, construed as the place where the main decisions regarding the data process purpose, conditions and means are made.

    - The GDPR includes the possibility for the supervisory authorities to impose more stringent sanctions. (art. 83) Depending on the type of infringement, the supervisory authorities can impose administrative fines up to 10 million euros or 2% of the total worldwide turnover of the company during the preceding financial year, whichever is higher, or up to 20 million euros or 4% of the total worldwide turnover of the company during the preceding financial year.

Finally, the GDPR will apply not only within the European Union, but will also produce extra-territorial effects. (art. 3 and 27) The GDPR will apply:
    - to controllers located within the European Union, whether or not the data process is performed in the EU, and
    - to the data of EU citizens and residents processed by a controller or a processor (subcontractor) located outside the EU, if the products or services target the European market. Certain non-European companies may then have to comply with the GDPR.


Businesses should use this two-year transition period to work on their legal and operational compliance with the GDPR. This compliance exercise should include a legal review of their existing commercial terms and conditions and privacy policies applicable to their products and services, and a review of their internal corporate privacy policies. Certain types of data process will also require technical and/or operational review and upgrade (such as collecting the proof of consent by the data subject, especially for the processing of children’s data).


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(1) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General data protection regulation)

Bénédicte DELEPORTE – Avocat

Deleporte Wentz Avocat
www.dwavocat.com

June 2016

Personal data transfers from the EU to the US: a new Privacy Shield to replace the Safe Harbor principles

The 1995 European directive on personal data protection allows companies to transfer personal data between Member States without restrictions. (1) However personal data transfers outside of the European Union are prohibited, except to a limited number of countries providing an adequate level of protection (such as EEA Member States and countries ensuring an adequate level of protection subject to a decision from the European Commission). The Safe Harbor principles provided the legal framework for data transfers to the US.

In its ruling dated 6 October 2015, the Court of Justice of the European Union (CJEU) decided to cancel the Safe Harbor privacy principles. (2) Since July 2000, European companies working with US companies adhering to Safe Harbor could transfer personal data legally to the United States. Such data transfers occur between companies belonging to a multinational group located on both sides of the Atlantic, or between a European client company and a service company located in the US (e.g. a US hosting company, a cloud service company or a company providing any types of data management services). With the cancellation of Safe Harbor, personal data can no longer be transferred legally from the EU to the US under these privacy principles.

The European Commission and the United States have been negotiating to set up a new privacy framework to better protect personal data transfers of the European citizens to the United States. The goal of the Commission was to reach an agreement on a “2.0 Safe Harbor” before the end of January 2016. (3) An agreement was reached at the beginning of February 2016 and on 29 February, the text of the EU-US Privacy Shield was released.

We describe below the main principles applicable to the new Privacy Shield framework and recall the other legal “tools” available for European companies which have to transfer personal data to the United States.


1. The main principles of the EU-US Privacy Shield framework

The text of the new EU-US Privacy Shield framework regarding personal data transfers between the European Member States and the United States was published on 29 February 2016. (4)

The purpose of the Privacy Shield framework is to provide protection principles for the personal data of the European citizens transferred to the United States, equivalent to the principles applicable within the European Union. More specifically, with the Privacy Shield, the authorities wanted to fix the issues identified with the Safe Harbor principles and put an end to the mass surveillance practice developed by the US National Security Authority (NSA), disclosed by Edward Snowden in 2013.

The Privacy Shield principles include the following rights which are similar to the rights issued form the EU privacy regulation:
   - a) notice to the data subject regarding the data processed by the organization, details about the data processed and how to contact the company with enquiries and complaints;
   - b) choice to opt out if the data is to be disclosed to a third party or used for a purpose which is different from the original purpose when the data was collected. Sensitive data process is subject to an opt in consent from the data subject;
   - c) accountability for onward transfers to a third party;
   - d) security of the data process against loss, misuse, unauthorized access, disclosure, alteration and destruction;
   - e) data integrity and purpose limitation. As in the EU, personal data collected must be limited to data relevant for the purpose of the processing being carried out;
   - f) access by the data subjects to their personal data to ensure that they can correct, amend or delete their data;
  - g) recourse, enforcement and liability mechanisms for individuals affected by non-compliance with the Privacy Shield.

The main provisions of the Privacy Shield framework, which differ from the Safe Harbor principles, can be summarized as follows:

- Companies will adhere to the Privacy Shield through self-certification. These organizations will be subject to strict compliance obligations. The US Department of Commerce will monitor and verify compliance by the companies which have registered. Companies adhering to the Privacy Shield principles must publicly declare their commitment to comply with the Privacy Shield, disclose their privacy policies (which must be in line with the Privacy Shield principles), and implement the Privacy Shield.

- Access to personal data by the US authorities will be regulated and only allowed for specific purposes, including law enforcement and national security. General access to data is prohibited.

- Several legal redress mechanisms are included in the new arrangement. Such legal recourse rights will be available to European as well as US citizens. One of the issues raised with Safe Harbor was that the European citizens had not legal recourse in the US if a US company using their data and adhering to Safe Harbor did not comply with its legal obligations. From now on, European citizens will have the option among several legal recourse mechanisms in case of personal data misuse:
    (i) Mediation: a mediation service through an Ombudsperson mechanism, independent from the US security services, will be set up within the US Department of State;
    (ii) Complaints to the US data processor: individuals will be able to send a claim to the US companies adhering to the Privacy Shield for problems regarding their personal data. Companies will have to respond to such claims within 45 days;
    (iii) Claims to the national supervisory authority: individuals will be able to send a claim to their national supervisory authority (such as the ICO in the UK or CNIL in France). Each national data supervisory authority will communicate with the Department of Commerce and the Federal Trade Commission (FTC) so that the claims are actually processed and settled;
    (iv) Alternative dispute resolution: an out-of-court settlement mechanism will be available, free of charge;
    (v) Arbitration: an arbitration mechanism will be available as a last resort by a Privacy Shield panel.

US companies may also choose to comply with the advice and guidelines issued by the national supervisory authorities. Companies processing human resources data will however have to comply with such guidelines.

The Department of Commerce will maintain an updated list of current companies adhering to the Privacy Shield and a list of companies which have left the Privacy Shield arrangement.

- Finally, the Privacy Shield framework includes an annual joint review mechanism between the European Commission and the US Department of Commerce, and national surveillance experts working with the US and European data protection authorities. The purpose of this annual reassessment exercise will be to check the effectiveness of the Privacy Shield and the actual compliance regarding access to personal data for law and order and national security purposes.

The main differences between Safe Harbor and the new Privacy Shield principles are the rights of recourse by the European citizens who feel that their personal data has been misused, a strong commitment by the US authorities regarding supervision and enforcement, and a joint annual review process between the EU and US authorities.

However, this new privacy framework is not yet in effect. The European Commission must issue its adequacy decision on the new EU-U.S. the new Privacy Shield, pursuant to article 31 of the 1995 directive on the protection of personal data. The adequacy decision means that the safeguards provided when personal data are transferred under the Privacy Shield are equivalent to data protection standards in the EU. Indeed, absent such adequacy decision, European companies cannot yet transfer personal data to US companies unless an alternative contract is in place. The legal adequacy assessment of the EU-US Privacy Shield will be conducted by the article 29 working party (art. 29 WP - representatives of the national data protection authorities of the Member States).

Meanwhile, European companies that must transfer personal data to the United States may still use the other existing legal tools available for transborder data transfers.


2. The other legal “tools” available to transfer personal data to the US

Until the Privacy Shield adequacy decision of the European Commission is released, the European companies which must transfer data to the United States must implement alternative legal tools. (5)

As experienced with the October 2015 CJEU ruling cancelling Safe Harbor, and with the new annual joint review mechanism of the Privacy Shield, companies adhering to such privacy frameworks are no longer assured of a stable long-term privacy protection environment for their transborder data transfers. The existing legal options are strong and stable alternatives to the Privacy Shield.

Three options are available : the EU Standard contractual clauses (SCC), private ad hoc contracts, and Binding corporate rules (BCRs).

The EU Standard contractual clauses (SCC) are relatively easy to implement subject to identifying the types of Standard clauses that are relevant to the data processes, and have them executed “as is” by each party. Should any of the clauses be amended by the parties, the document will have to be approved by a national data protection authority.

The ad hoc contractual option, is a contract drafted by the parties and adapted to the data process under consideration. This may be the best option. An ad hoc contract is indeed more flexible and adapted than the Standard contractual clauses. It is however necessary to take into account the cost, process and delays to receive an authorization from a national data protection authority. This contractual option may be used between two commercial entities or between affiliates (in lieu of BCRs).

Lastly, the Binding Corporate Rules (BCRs) option can only be used within a multinational group of companies. BCRs are not an alternative to govern the relationship with third party commercial partners or service providers. BCRs also usually require several months to be drafted and approved by a national authority prior to being rolled out within the group of affiliated companies. However, once the BCRs are approved and rolled out, this system is then a stable option.


As a reminder, penalties for illegal cross-border data transfers can reach up to €300,000 and 5 years in prison. This includes data transferred to the United States under the Safe Harbor principles, which are no longer valid.

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(1) Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data

(2) CJEU, Gd Chamb., 6 October 2015, Maximillian Schrems / Data Protection Commissioner

(3) European Commission - Press release dated 6 November 2015 “Commission issues guidance on transatlantic data transfers and urges the swift establishment of a new framework following the ruling in the Schrems case” : and see our article “Personal data transfers from the EU to the US after the cancellation of Safe Harbor by the CJEU”, published on this blog in December 2015

(4) European Commission - Press release dated 29 February 2016 “Restoring trust in transatlantic data flows through strong safeguards: European Commission presents the EU-U.S. Privacy Shield”

(5) The decision concluding the Umbrella agreement including the Privacy Shield should be adopted by the European Council after obtaining the consent of the European Parliament.


Bénédicte DELEPORTE
Avocat

Deleporte Wentz Avocat
www.dwavocat.com

March 2016

Personal data transfers from the EU to the US after the cancellation of Safe Harbor by the CJEU

In a landmark decision on 6 October 2015, the Court of Justice of the European Union (CJEU) held that the Safe Harbor principles, in effect between the EU and the US since 2000, were invalid. All European companies working with US commercial organizations adhering to Safe Harbor must reassess the conditions under which they are transferring personal data to these entities. (1)

The purpose of this article is to review the main rules governing cross-border personal data transfers and to provide a few answers and solutions following this landmark decision.


1. Personal data transfers outside of the European Union and the cancellation of the Safe Harbor principles

Although the 1995 Data Protection Directive lifted all restrictions to cross-border personal data transfers within the EU, transfers outside of the Union remain prohibited in principle, except in limited cases. (2)

    1.1 Rules governing personal data transfers outside of the European Union

With the globalization of the economy, and even more so with the digital economy, most companies transfer data to third countries, either to their headquarters or affiliates, to subcontractors, or to service providers. While personal data transfers outside of the European Union are prohibited, there are however a few exceptions to this principle. The following cross-border personal data transfers are allowed:

    - data transfers to a country acknowledged by the European Commission as providing a sufficient, or “adequate” level of protection. Only a handful of countries outside of the EU are deemed to have enacted laws providing a level of protection equivalent to those in effect in Europe; (3)
    - data transfers between two entities (exporting and importing data) having signed the EU Standard contractual clauses (SCC) adopted by the European Commission. This contractual solution is applicable either between two data controllers or between a data controller and a subcontractor;
    - data transfers between two or more affiliates within a multinational corporation, subject to that multinational corporation having implemented Binding Corporate Rules (BCRs), applicable among all the affiliates and approved by one of the national data protection authorities (“national supervisory authorities”) such as the CNIL in France or the ICO in the UK;
    - data transferred in exceptional situations, if the data subject has given his consent to such transfer;
    - and until the 6 October 2015 decision, data transfers to the United States, subject to the importing company adhering to Safe Harbor.

The Safe Harbor principles include a set of personal data protection rules, negotiated between the US authorities (US Commerce Department) and the European Commission in 2000, and approved by a Commission decision dated 26 July 2000. (4)

The Safe Harbor principles include rules concerning the protection of personal data, designed after the principles of the 1995 Data Protection Directive. The Safe Harbor framework only applies to those US companies that have voluntarily declared to adhere to the principles. The US Federal Trade Commission (FTC) is in charge of administering the Safe Harbor principles including publishing the list of companies adhering to the system.

However, the Safe Harbor principles were declared invalid by the European Court of Justice on October 6.

    1.2 The Schrems decision

In its decision issued on 6 October 2015, the Court of Justice of the European Union invalidated the Safe Harbor framework, deciding that a national supervisory authority could suspend personal data transfers from the EU to the United States.

The case concerns an Austrian citizen, Maximillian Schrems, a Facebook user since 2008.

The data provided by European Facebook users are stored by its subsidiary, located in Ireland, prior to some of it then being transferred to the United States. Mr Schrems lodged a claim before the Irish Data Protection Commissioner, considering that following Edward Snowden’s disclosure regarding the activities of the US intelligence services (including the NSA and the FBI), the United States didn’t properly protect the personal data provided by the European citizens and residents against surveillance activities. The Irish data protection authority dismissed the claim, arguing that in its 26 July 2000 decision, the European Commission had considered that the United States provided an adequate level of protection of personal data transferred under the Safe Harbor framework.

Mr Schrems then brought an action before the High Court of Ireland which decided to refer  two questions to the CJEU for a preliminary ruling. The Irish judges wanted to know if the 2000 European Commission decision prevented the national data protection authorities from investigating when a data subject claims that a non-EU country doesn’t provide an adequate level of protection to the personal data transferred. Is the plaintif irrevocably bound by the European Commission decision, without any possible legal recourse?

In its 6 October 2015 decision, the CJEU decided that the European Commission should have assessed whether the United States did provide adequate protection, through their legislation or through their international commitments, and at least, “a level of protection that is essentially equivalent to that guaranteed within the European Union by virtue of the European directive, read in the light of the Charter of Fundamental Rights of the European Union.”

The Court noticed that the US authorities practiced massive and indiscriminate surveillance over the data transferred without granting effective legal protection to the data subjects.

US companies are subject to US mandatory laws and regulations which supersede the Safe Harbor principles. According to the Court, the European Commission didn’t research whether the United States did provide an adequate level of protection to personal data, and the US authorities through their massive surveillance program overreached their power to circumvent the privacy principles. The Court decided that the 2000 Commission decision was therefore invalid.

According to the CJEU, even though the European Commission did acknowledge that the United States granted adequate protection to personal data, the national data protection authorities must be able to control whether data transfers of a data subject to a non-EU country comply with the requirements of the 1995 Data Protection Directive.

The Court concluded that if a national data protection authority had doubts about the adequacy decision of the Commission, that authority must be able to bring an action before the national courts so that they may then send the case to the European Court of Justice. The 2000 decision of the European Commission cannot prevent data subjects and the national data protection authorities from such legal recourse.


2. The consequences of the Schrems case: legal insecurity requiring action

Personal data transfers to the United States made under the Safe Harbor principles are therefore no longer valid. This implies that data transfers which were previously valid are no longer legal, but also that it is no longer possible to initiate new personal data transfers under the Safe Harbor principles.

    2.1 Consequences of the Schrems case

- The article 29 working party (art. 29 WP): the French data authority (CNIL) is currently reviewing, together with its colleagues of the art. 29 WP (representatives of the national data protection authorities of the Member States), the legal and operational consequences of the CJEU decision.

In the meantime, the art. 29 WP has requested the national data protection authorities to implement a solution to overcome the current legal insecurity caused by the CJEU decision. In a declaration made on 15 October, the art. 29 WP invited the European institutions to initiate discussions with their American counterparts to find a new system allowing the transfer of personal data in compliance with the European fundamental rights, such decision to be reached by 31 January 2016. (5)

If the parties fail to reach an agreement by this deadline, the national data protection authorities may then “launch any action necessary, including coordinated punitive actions.”

- The national supervisory authorities: further to the CJEU decision, several national authorities have already taken “preventative” measures.

The data protection authorities from the German Länder and the national German supervisory authority have announced that they would no longer authorize new data transfers to the United States, including under the EU Standard contractual clauses or BCR schemes.

The Spanish data protection authority (Agencia Española de Protección de Datos - AEPD) announced that they would send a message to the entities that had declared transferring personal data under the Safe Harbor principles, enquiring about the alternative solutions that they plan to implement.

The Schrems decision has also spread beyond the boundaries of the European Union, including  for those non-EU countries providing an adequate level of protection, regarding their data transfers to the US.

The Israeli data protection authority (Israeli Law, Information and Technology Agency - ILITA) has decided to suspend personal data transfers to the United States.

And the Swiss authority announced that as long as a new agreement with the US government hadn’t been reached, the “U.S.-Swiss Safe Harbor Framework” would no longer be considered as legal basis for transfers of personal data to the US in compliance with the Swiss law on data protection.

Other third countries are also reconsidering the conditions of cross-border data transfers to the United States and other countries.

- The EU Commission: on 6 November 2015, the Commission issued guidance on transatlantic data transfers which will remain effective until a new system is implemented.

The Commission analyzed the repercussions of the Schrems case and proposed alternatives to transfer personal data legally to the United States (including the EU Standard contractual clauses or BCR). (6)

- Toward Safe Harbor 2.0?: the EU Commission had already decided to review the Safe Harbor framework following disclosure by Edward Snowden in 2013 on the surveillance program of the NSA since the American security laws came into effect after the 9/11 terrorist attacks. In November 2013, the Commission issued 13 recommendations to improve the then current Safe Harbor rules.

Since the Schrems decision of 6 October 2015, the EU Commission has been accelerating negotiations with its US counterparts to set up a new framework improving the legal protection for  transfers of European personal data to the United States. The goal is to reach a new framework agreement by the end of January 2016.

    2.2 Data transfers during the interim period

The cancellation of the Safe Harbor principles creates uncertainty for companies that were transferring data cross-border under the Safe Harbor framework.

Can organizations transferring personal data to the United States pursue their operations without switching to a new legal framework until new Safe Harbor rules are issued by the EU Commission? Should they plan for the longer term and implement alternative solutions?

Should all data transfers to the United States be suspended, or should they be confined to Europe, or transferred to a country providing an adequate level of protection?

For data transferred under a cloud computing service agreement, what should the client do if the  US service provider refuses to amend the transfer terms?

The three months deadline to reach agreement on a new Safe Harbor framework may seem “aggressive” and nothing warrants that this deadline will be met by the authorities.

Until the authorities and institutions find a solution and a new 2.0 Safe Harbor framework comes to life, corporations must find legal and technical solutions to limit legal risks and circumvent transfer restrictions. Penalties for illegal cross-border data transfers can reach up to €300,000 and 5 years in prison. 

- Legal and technical compliance audits: as a first step, entities exporting personal data to be processed in the United States should conduct a legal and technical audit of current data transfers as well as a risk analysis. The data processes, types of data transferred and legal regime under which the data are transferred must be clearly identified and characterized. Once a map of the data transfers has been set up, the impacts of the cancellation of Safe Harbor will be assessed on a case by case basis, with a short and a medium term evaluation.

- Compliance solutions: further to the compliance audit, alternative compliance solutions may have to be adopted. Three options can be considered : the EU Standard contractual clauses (SCC), private ad hoc contracts, and Binding corporate rules (BCRs) within a multinational group of companies.

The EU Standard contractual clauses (SCC) may appear as the easier short term option. It is however necessary to identify the types of Standard clauses that are relevant to the data processes, and have them executed “as is” by each party. Should any of the clauses be amended, the document will have to be approved by a national data protection authority.

Unless an agreement is reached with its US service providers to operate under the EU Standard contractual clauses, the European client entity may have no other solution than terminating the current agreement with its American service provider and select an alternative European provider, or a company located in a country providing an adequate level of protection.

The ad hoc contractual option, i.e. a contract drafted by the parties and adapted to the data process under consideration could be the best option. An ad hoc contract is indeed more flexible and adapted that the Standard contractual clauses. It is however necessary to take into account the cost, process and delays to receive an authorization from the national data protection authority. This contractual option may be used between two commercial entities or between affiliates (in lieu of BCRs).

Binding Corporate Rules (BCRs) can only be used within a multinational group of companies and are not an alternative to govern the relationship with third party commercial partners or service providers. BCRs also usually require several months to be drafted, then get approval from a national authority prior to being rolled out within the group of affiliated companies.

The benefit of these alternative solutions to Safe Harbor is their stability and the fact that they can remain the preferred solution after a new Safe Harbor framework is launched. If the authorities reach an agreement on a 2.0 Safe Harbor framework, the Schrems decision recalls that in case of alleged breach of their legal obligations, data subjects have a legal recourse against US companies adhering to the Safe Harbor principles.

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(1) CJEU, Gd Chamb., 6 October 2015, Maximillian Schrems / Data Protection Commissioner

(2) Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data

(3) The countries providing an adequate level of protection, and to which personal data may be transferred without additional formalities or authorizations are: Argentina, Canada, Iceland, Israel, Liechtenstein, Norway, New Zealand, Switzerland, Uruguay

(4) EU Commission Decision 2000/520 dated 26 July 2000

(5) Brussels 15 October 2015 : “Statement of the Article 29 Working Party”.

(6) EU Commission press release dated 6 November 2015 “Commission issues guidance on transatlantic data transfers and urges the swift establishment of a new framework following the ruling in the Schrems case”


Bénédicte DELEPORTE
Avocat

Deleporte Wentz Avocat
www.dwavocat.com

December 2015