Litigation of Data Breaches – Page 2

UK Government publishes new proposed data protection law

Jul 27 2022

By Claude-Étienne Armingaud, Nóirín McFadden and Keisha Phippen

The UK Government has finally published its highly anticipated Data Protection and Digital Information Bill (the Bill), marking the first significant post-Brexit change to the UK’s data protection regime. Following Brexit, the UK continued following the EU General Data Protection Regulation, incorporated into UK law as the UK GDPR, and the UK implementation of the EU ePrivacy Directive, the Privacy and Electronic Communications Regulations 2003 (PECR), also remained in force.

The Bill is only at the start of the legislative process, and it remains to be seen how it will develop if it is amended during its passage through Parliament, but early indications are that it represents more of an evolution than a revolution in the UK regime. That will come as a relief to businesses that transfer personal data from the EU to the UK, because it reduces the risk that the EU might rescind the UK’s adequacy status.

For a start, the Bill actually preserves the UK GDPR, its enabling legislation the Data Protection Act 2018, and the PECR, because it is drafted as an amending act rather than a completely new legislative instrument. This does not contribute to user-friendliness, as interpreting UK data protection requirements will require a great deal of cross-referencing across texts.

The more eye-catching proposed changes in the Bill include:

The inclusion of a list of “legitimate interests” that will automatically qualify as being covered by the lawful basis in UK GDPR Article 6(e).
Some limitations on data subject access requests, such as the possibility of refusing “vexatious or excessive” requests.
More exemptions from the requirement to obtain consent to cookies.
Much higher fees for breach of PECR.

The Bill will now progress through various Parliamentary stages over the coming months in order to become law.

Queen’s speech heralds UK GDPR overhaul

May 25 2022

By Claude-Étienne Armingaud and Nóirín McFadden

In the Queen’s speech at the state opening of parliament on 10 May 2022, the UK government announced its intention to change the UK’s data protection regime in a new Data Reform Bill. This follows a consultation last Autumn on how the UK GDPR could be reformed following the UK’s exit from the European Union (EU).

The government claims that the new Bill would:

Create a data protection framework focused on “privacy outcomes” that would reduce the burdens on businesses, and a “clearer regulatory environment” to encourage “responsible innovation”.
Ensure that citizens’ data is “protected to a gold standard”, while enabling more efficient sharing of data between public bodies.
Modernise the Information Commissioner’s Office and require it to be “more accountable to Parliament and the public”.

The Queen’s speech also announced plans to replace the Human Rights Act 1998, which incorporated the European Convention on Human Rights into UK law. According to the government a new “Bill of Rights” would “end the abuse of the human rights framework and restore some common sense to [the] justice system”. This would be achieved by “establishing the primacy of UK case law”, which means that UK courts would no longer be required to follow the case law of the European Court of Human Rights.

Taken together, both of these proposed new legislative measures could change the balance of protection of individuals’ rights in the UK, both generally and in the specific area of personal data regulation. Their development will be closely watched by data protection professionals, because any significant changes in the UK data protection regime could prompt the EU to review its post-Brexit UK adequacy decision, potentially leading to the end of decades of seamless transfers of personal data from the EU to the UK.

New GDPR Guidelines on Data Transfers

Dec 01 2021

Claude-Étienne Armingaud, Camille Scarparo and Bastien Pujol

On 19 November 2021, the European Data Protection Board (“EDPB”) adopted new guidelines on the interplay between Article 3 GDPR (territorial scope) and Chapter V GDPR (transfer of personal data to third countries or international organization) of the General Data Protection Regulation (“GDPR”).

Those draft Guidelines aim at clarifying the mechanism of international transfers and more specifically provide a necessary assistance to controllers and processors in the European Union (“EU”) or otherwise subject to GDPR, including guidance on when a data importer would be subject to GDPR and an interpretation of the concept of international transfer.

In order to characterize a processing as a “transfer”, the EDPB relied on the three following cumulative criteria:

The data exporter (a controller or processor) is subject to the GDPR for the given processing;
- As a reminder, while GDPR generally applies to all entities processing personal data and established in the EU, it can also have an extra territorial reach for certain processing operations consisting in (i) offering products or services to individuals in the EU (e.g. ecommerce and apps) or (ii) monitoring of EU individuals’ behavior taking place in the EU (e.g. cookies and other tracking technologies).
The data exporter transmits or makes available the personal data to the data importer (another controller, joint-controller or processor); and
- In that regard, the mere remote access to the data would still qualify as a “data transfer” and it remains to be hopefully clarified in the final Guidelines whether the sharing of personal data among joint-controllers (both subject to GDPR from the inception of the processing operations) would in and of itself be considered as a data transfer.
The data importer is in a third-country or is an international organization.

In addition, a processing that meets these three criteria will be considered a transfer when the importer is established in a third-country and subject to the GDPR following provisions of article 3.2 GDPR. The EDPB considered that when the controller located in a third-country is already subject to GDPR, “less protection/safeguards are needed”. Nevertheless, conflicting national laws, government access in the third-country as well as the difficulty to enforce and obtain redress against an entity outside the EU should be addressed when developing relevant transfer tools.

The EDPB specified that personal data directly collected from the data subjects, at their own initiative, should not to be considered as a transfer.

An online public consultation is opened on the matter until 31 January 2022.

This is your digital life (of no consent or control): The Australian Information Commissioner takes Facebook to Court

Mar 11 2020

By Cameron Abbott, Rob Pulham and Rebecca Gill

In a first for Australia, the Australian Information Commissioner (Commissioner) has launched proceedings in the Federal Court of Australia, seeking penalties against Facebook for serious and/or repeated interferences with privacy. The contraventions relate to the conduct disclosed by the Cambridge Analytica scandal, which involved the This is Your Digital Life app (App). We’ve previously blogged about the App here.

It is unclear how the penalties will be calculated in this proceeding. The penalty rate applicable to the relevant period (being from March 2014 to May 2015) is a maximum of $1.7 million. Some have suggested that fines may be in the billions if the maximum rate is applied to each individual affected as a single “contravention” (with possibly over 300,000 contraventions in total!). This may be fun to calculate, but highly unlikely to be applied in reality.

By Cameron Abbott and Michelle Aggromito

With email being one of the most common forms of communication, it’s not surprising that inboxes these days accumulate thousands of emails that, perhaps, aren’t always electronically filed or deleted (not ours of course).

As the Office of the Australian Information Commissioner (OAIC) has indicated in its most recent report on notifications received under the Notifiable Data Breach (NBD) scheme, email accounts are frequently being used for storage, and this raises inherent risk. Yes it’s convenient, but using email to send personal information, such as copies of passports, bank account details and credit card information, can very quickly lose its appeal. If the email account is accessed by a malicious actor through a phishing attack or a rogue employee, the end result can be exploitation of that information for criminal gain.

You Can’t Throw the (Face)Book at Them: Affected Users Unable to Pursue Damages Claim against Facebook

Dec 23 2019

By Cameron Abbott, Max Evans and James Gray

A US federal judge has ruled that the 29 million Facebook users affected by the September 2018 data breach may not seek damages as a remedy, but can only pursue the enforcement of better security practices at Facebook, according to a report by Reuters. Judge Alsup of the US District Court stated that Facebook’s repetitive losses of users’ privacy indicated a long-term need for supervision, which comes in addition to prior judgment which indicated that Facebook’s views about user’s privacy expectations were “so wrong”.

Insufficiency meets Punishment: Polish DPA issues largest fine for Insufficient Security and Organisational Measures

Oct 29 2019

By Cameron Abbott and Max Evans

Further to the Facebook and Tesco scandals, and the apparent statistic increase of enforcement fines issued, the Polish Data Protection Authority has issued a landmark fine of €645,000 against online retail company morele.net for insufficient security and organisational measures violating data confidentiality and integrity principles prescribed in the EU’s General Data Protection Regulation.

Update on the Criminalisation of Non-Consensual Distribution of Intimate Images in WA: Another Conviction in Australia

Oct 25 2019

By Olivia O’Brien, Philip Murray and Kathleen Weston

Just a few months ago, we published an article on the criminalisation of the non-consensual distribution of intimate images in Western Australia. Only this week, there has been a second successful conviction under the Criminal Law Amendment (Intimate Images) Act 2018 (WA) (WA Act) in the Rockingham Magistrate’s Court.

The OAIC engages in more in-depth investigations and stronger exercise of its power

Jun 28 2019

By Cameron Abbott, Rob Pulham and Jacqueline Patishman

Following two key data incidents concerning how the Commonwealth Bank of Australia (CBA) handled data, the OAIC has successfully taken court action binding the banking heavyweight to “substantially improve its privacy practices”.

As a quick summary of the incidents, the first incident involved the loss of magnetic storage tapes (which are used to print account statements). These contained historical customer data including customer statements of up to 20 million bank customers. In 2016, the CBA was unable to confirm that the two magnetic tapes were securely disposed of after the scheduled destruction by a supplier.

PwC’s Enforcement Tracker finds a large increase in fines for privacy breaches in the UK

Jun 03 2019

By Cameron Abbott and Rebecca Gill

PwC’s UK Privacy & Security Enforcement Tracker has found that fines in the UK over data protection law violations totalled £6.5 million in 2018, a £2 million increase from 2017.

The Tracker analysed data protection enforcement actions by the UK Information Commissioner’s Office (ICO), including monetary fines, prosecutions and undertakings. The Tracker shows that the total sum of fines increased from 2017, but the number of ICO enforcements fell to 67 in 2018 from 91 in 2017.

Catagory:Litigation of Data Breaches

This is your digital life (of no consent or control): The Australian Information Commissioner takes Facebook to Court

You’ve got mail…and lots of it according to the latest OAIC report!

You Can’t Throw the (Face)Book at Them: Affected Users Unable to Pursue Damages Claim against Facebook

Update on the Criminalisation of Non-Consensual Distribution of Intimate Images in WA: Another Conviction in Australia

The OAIC engages in more in-depth investigations and stronger exercise of its power

PwC’s Enforcement Tracker finds a large increase in fines for privacy breaches in the UK