Privacy & Information Security Law Blog

On July 1, 2012, the Article 29 Working Party (the “Working Party”) adopted WP196 (the “Opinion”) setting out an analysis of the legal framework associated with cloud computing, as well as recommendations directed at both data controllers and data processors in the European Economic Area (the “EEA”). The Opinion identifies two data protection risks associated with the deployment of cloud computing services, namely: (1) lack of control over the data and (2) lack of information on data processing. Cloud computing and the range and geographical dispersion of the various parties involved also have raised significant uncertainty in terms of applicable law, which the Working Party previously analyzed in its Opinion 8/2010. Below is an overview of the different topics covered in the Opinion issued on July 1.

On June 27, 2012, the Conference of the German Federal and State Data Protection Commissioners (the “Conference”) issued a Resolution and a comprehensive guidance paper regarding data protection compliance with respect to smart metering.

Smart metering is the use of intelligent energy networks and meters for monitoring and billing purposes. According to the Resolution, smart meter systems help guarantee a sustainable energy supply in terms of resource efficiency, environmental friendliness and the efficient production, distribution and use of energy. The guidance paper issued by the Conference describes and analyzes the individual processing activities involved in the various uses of smart metering in light of German data protection law. In particular, the guidance paper describes the “use cases” in terms of the respective level of data protection involved.

On June 28, 2012, the UK Ministry of Justice outlined its negotiating position on the proposed EU Data Protection Regulation (the “Proposed Regulation”) in its published “Summary of Responses - Call for Evidence on Proposed EU Data Protection Legislative Framework” (the “Summary”).

The Call for Evidence sought to gain perspective and solicit feedback on how the Proposed Regulation would impact organizations and individuals in the UK. The responses received from the private sector were the most significant, which is not surprising given the potentially huge impact on business.

On June 6, 2012, the Article 29 Working Party (the “Working Party”) adopted WP 195 (the “Opinion”) setting out the requirements for Binding Corporate Rules (“BCRs”) for processors. Similar to WP 153, the Opinion lists the requirements to be covered in the processor BCRs application form and the BCRs document itself. The Opinion likely will be welcomed by processors, in particular those that provide large-scale, multinational data processing services.

On May 31, 2012, the UK Information Commissioner’s Office (“ICO”) published a draft anonymization code of practice (the “Code”) which will be open to public consultation until August 23, 2012. The purpose of the Code is to provide organizations with guidance on how personal data can be anonymized successfully, and how to assess the risk of individuals being identified using data that has been anonymized. The ICO also has launched a £15,000 invitation to tender to establish a network of experts to share best practices regarding anonymization.

On June 7, 2012, the Federal Trade Commission announced settlement agreements with two businesses that allegedly exposed customers’ sensitive personal information by allowing peer-to-peer (“P2P”) file-sharing software to be installed on their company computers and networks.

In its complaint against Franklin’s Budget Car Sales (“Franklin”), a Georgia automobile dealership that also provides financing services to its customers, the FTC alleged that Franklin failed to implement reasonable security measures to protect the consumer personal information that Franklin routinely collects in connection with its business. The FTC claimed that personal information of approximately 95,000 customers, including names, Social Security numbers, addresses, dates of birth, and drivers’ license numbers were made available and disclosed by a P2P application installed on a computer that was connected to Franklin’s computer network. In addition to alleging violations of Section 5 of the FTC Act, the FTC also claimed that Franklin violated the Gramm-Leach Bliley Act (“GLB”). This is the first FTC case against an auto dealer involving GLB violations. The FTC stated in its complaint that Franklin failed to implement reasonable security policies and procedures in violation of the GLB Safeguards Rule, and also failed to send consumers annual privacy notices and to provide the required opt-out mechanisms in violation of the GLB Privacy Rule.

On June 7, 2012, the Article 29 Working Party (the “Working Party”) adopted an Opinion analyzing the exemptions to the prior opt-in consent requirement for cookies. Although the Opinion focuses on cookies, the Working Party also notes that the same analysis applies to any technology allowing information to be stored or accessed on a user’s computer or mobile device.

On May 24, 2012, the German Federal Government submitted to the Parliament (Bundestag) a proposal to amend the Geodatenzugangsgesetz, a federal law concerning access to geographical data that has been in force since 2009.

The current law implements Directive 2007/2/EC of the European Parliament and of the Council of 14 March 2007 establishing an Infrastructure for Spatial Information in the European Community (“INSPIRE”). In addition to establishing a national geographical data infrastructure, the law aims to provide a legal framework for (1) accessing geographical data, geographical data services and metadata of organizations that maintain such data, and (2) using such data and services, in particular with regard to measures that may affect the environment. The law applies to federal agencies and corporations under public law.

On May 26, 2012, the United States government submitted its request to participate in the APEC Cross-Border Privacy Rules (“CBPRs”) system. The CBPRs system was endorsed by APEC leaders in November 2011. The protocol requires a participating economy to submit:

• A letter of intent to participate;
• Confirmation that a privacy enforcement agency in the economy is a participant in the Cross-Border Privacy Enforcement Arrangement;
• Notice that the economy intends to make use of at least one APEC-recognized accountability agency; and
• A description of the domestic laws and other legal mechanisms to give effect to the enforcement activities related to the activities of the accountability agent, which also must include an enforcement map.

On May 25, 2012, the UK Information Commissioner’s Office posted updated guidance on how to comply with amendments to EU data protection law requiring businesses to obtain consent from website visitors to store information on their computers and retrieve that information in the form of cookies. Last year, the ICO gave organizations a grace period expiring on May 26, 2012, to comply with the new cookie rules.

On May 4, 2012, Marty Abrams, President of the Centre for Information Policy Leadership at Hunton & Williams LLP (“the Centre”), interviewed British Columbia’s Information and Privacy Commissioner Elizabeth Denham during the Centre’s First Friday call. Commissioner Denham discussed the April 2012 release of “Getting Accountability Right with a Privacy Management Program,” new guidance issued by the Office of the Privacy Commissioner of Canada and the Offices of the Information and Privacy Commissioners of Alberta and British Columbia. The guidance addresses the Commissioners’ expectations for accountable privacy programs as required by Canadian law. Commissioner Denham described the guidance as “a tool to help organizations comply with the law,” providing “a roadmap to sound data governance,” with clear, practical terms for organizations to achieve accountability.

Hunton & Williams is pleased to announce that Chambers and Partners has ranked the firm in “Band 2” in its 2012 Chambers Europe guide for TMT: Information Technology: Belgium. Brussels managing partner Wim Nauwelaerts was recognized for his “very straightforward” and “no-nonsense approach.”

The Uruguayan Personal Data Control and Regulatory Unit has released the preliminary agenda for the 34th International Conference of Data Protection and Privacy Commissioners to take place October 23-24, 2012 in Punta del Este, Uruguay, at the Conrad Hotel. The conference theme is “Privacy and Technology in Balance.” The preliminary agenda with session descriptions and other information is available on the conference website at www.privacyconference2012.org.

As we previously reported, on May 3-4, 2012, the European data protection authorities’ (“DPAs’”) Spring Conference was held in Luxembourg, and the Data Protection Commissioners closed the conference by issuing a resolution on European data protection reform. In their resolution, the Data Protection Commissioners expressed general satisfaction with the ongoing modernization of the data protection frameworks of the European Union, the Council of Europe and the Organization for Economic Cooperation and Development.

Following a meeting in Sopot, Poland, on April 24, 2012, the International Working Group on Data Protection in Telecommunications (the “Working Group”), led by the Berlin Commissioner for Data Protection and Freedom of Information, issued a Working Paper that focuses on privacy and data protection issues related to the use of cloud computing in the international context. The Working Paper aims to reduce uncertainty regarding the definition of cloud computing and how the technology intersects with privacy, data protection and other legal issues.

On May 2, 2012, Australia’s Attorney General Nicola Roxon announced that the Australian government will introduce a bill to the Australian Parliament that will enact a number of the recommendations from the 2008 Law Reform Commission Report (ALRC Report 108) and reform privacy law in Australia. Discussion drafts of segments of the bill were considered by a Senate Committee in 2011. On May 4, Australian Privacy Commissioner Timothy Pilgrim presented an overview of the draft legislation at an event held during the iappANZ Privacy Awareness Week. Commissioner Pilgrim noted that the legislative package includes:

On May 3, 2012, Viviane Reding, Justice Commissioner and European Commission Vice-President, delivered a speech during the European data protection authorities’ (“DPAs’”) Spring Conference, which was held in closed sessions in Luxembourg. In her speech, Commissioner Reding discussed how the proposed EU Data Protection Regulation aimed to empower the DPAs and addressed some of the DPAs’ primary concerns with the reform.

On April 27, 2012, the Centre for Information Policy Leadership at Hunton & Williams LLP (the “Centre”) submitted comments to the latest Singapore consultation on proposed personal data protection legislation, the Personal Data Protection Act 2012. The consultation is being conducted by the Ministry of Information, Communications and the Arts and expired on April 30, 2012.

On April 19, 2012, the French Data Protection Authority (the “CNIL”) issued a press release detailing its enforcement agenda for 2012. In a report adopted March 29, 2012, the CNIL announced that it will conduct 450 on-site inspections this year, with particular focus on the specific themes described below. The CNIL also indicated that it will continue the work started in 2011 with at least 150 additional inspections related to video surveillance, especially with respect to surveillance in locations that are frequented by large numbers of individuals.

The UK Information Commissioner’s Office’s (“ICO”) has revised its statutory Code of Practice on assessment notices (the “Code”). The ICO first issued the Code in 2010, when its audit powers came into force. The Code has now been updated to reflect changes in auditing standards and practices.

Join Hunton & Williams at the 2012 Europe Data Protection Intensive, now hosted by the International Association of Privacy Professionals (“IAPP”) in London, April 25-26, 2012. Hunton & Williams privacy professionals will be featured speakers in the following sessions:

On April 17, 2012, the Office of the Privacy Commissioner of Canada and the Information and Privacy Commissioners of Alberta and British Columbia released guidance on their expectations for accountable privacy programs as required by Canadian law. The guidance, entitled “Getting Accountability Right with a Privacy Management Program,” discusses the building blocks of a comprehensive privacy program for businesses of all sizes. Although intended for a Canadian audience, the paper likely will have worldwide influence given recent privacy law developments around the globe.

On March 8, 2012, during the CeBIT international IT trade show, the German Federal Office for Information Security (Bundesamt für Sicherheit in der Informationstechnik or “BSI”) accepted the German Insurance Association’s application for certification of the “Trusted German Insurance Cloud,” a project that aims to establish a secure IT platform for the German insurance industry.  The parties previously had agreed to work together to develop practical requirements for a secure cloud solution, and to implement appropriate security measures in the “Trusted ...

On March 22, 2012, the Article 29 Working Party (the “Working Party”), adopted an Opinion analyzing the privacy and data protection law framework applicable to the use of facial recognition technology in online and mobile services, such as social networks and smartphones. The Working Party defines facial recognition as the “automatic processing of digital images which contain the faces of individuals for the purpose of identification, authentication/verification or categorization of those individuals.”

On March 23, 2012, the Article 29 Working Party (the “Working Party”) adopted an Opinion on the European Commission’s data protection law reform proposals, including the draft Regulation that is of particular importance for businesses. The Working Party’s Opinion serves as the national data protection authorities’ contribution to the legislative process before the European Parliament and the European Council.

On March 19, 2012, the European Commission hosted this year’s Safe Harbor Conference in Washington, D.C., to address the transfer of data from Europe to the United States. Although it appears the Safe Harbor framework will remain unchanged for the time being, it seems unlikely the United States will be considered adequate, or even interoperable, with the EU for purposes of cross-border data transfers.

On March 22, 2012, the 83rd Conference of the German Data Protection Commissioners came to an end in Potsdam. The attendees indicated their general support for the European Commission’s proposed reform package aimed at modernizing and harmonizing data protection laws in the EU, but insist that Member States should have the authority to implement more stringent data protection measures for the area of public administration.

On March 20, 2012, the Senate of the Philippines unanimously approved the omnibus Data Privacy Act of 2011, also known as “An Act Protecting Individual Personal Information in Information and Communications Systems in the Government and the Private Sector, Creating for This Purpose a National Data Protection Commission, and for Other Purposes” (S.B. 2965). Once signed into law, the legislation will impose a privacy regime modeled on the EU Data Protection Directive. It features significant notice, consent and data breach notification requirements, and it imposes direct ...

Join us at the International Association of Privacy Professionals (“IAPP”) Global Privacy Summit in Washington, D.C., March 7-9, 2012. Hunton & Williams privacy professionals will be featured speakers in the following sessions:

• Mending Fences after a Breach Thursday, March 8, 12:15 p.m. Speakers include: Lisa J. Sotto, partner and head of the Global Privacy and Data Security practice, Hunton & Williams LLP; Susan Grant, Director of Consumer Protection, Consumer Federation of America; and Joanne B. McNabb, Chief, California Office of Privacy Protection.

On February 24, 2012, the German Federal Constitutional Court (Bundesverfassungsgericht) ruled that certain provisions in the Federal Telecommunications Act concerning the disclosure of telecom user data to law enforcement agencies violate the German constitution. The Court held that strict conditions apply when law enforcement authorities and intelligence agencies ask telecommunications service providers (which may include hospitals and hotels) to turn over certain user data, i.e. passwords and PIN codes.

On January 25, 2012, the UK Information Commissioner’s Office (“ICO”) published an initial statement welcoming the European Commission’s proposed new General Data Protection Regulation (the “Proposed Regulation”), and commended the Commission’s efforts to strengthen the rights of individuals, recognize important privacy concepts such as privacy by design and privacy impact assessments, and include accountability requirements.

The American Bar Association’s (“ABA’s”) House of Delegates adopted a non-binding resolution urging courts to consider foreign data protection and privacy laws when resolving discovery issues. The full text of the resolution is as follows:

“RESOLVED, That the American Bar Association urges that, where possible in the context of the proceedings before them, U.S. federal, state, territorial, tribal and local courts consider and respect, as appropriate, the data protection and privacy laws of any applicable foreign sovereign, and the interests of any person who is subject to or benefits from such laws, with regard to data sought in discovery in civil litigation.”

On February 16, 2012, the European Court of Justice held in the SABAM vs. Netlog case (C-360/10) that imposing an obligation on social networks to install a “general filtering system” to prevent all users from sharing copyrighted music is disproportionate to the extent that such filters may infringe on user privacy rights or block lawful communications. SABAM, a Belgian copyright association, had filed an injunction against social network provider Netlog that would have required Netlog to install filtering systems to prevent copyright infringements by Netlog users. The Belgian court deciding on the injunction requested a preliminary ruling from the ECJ.

Since October 2011, the Hong Kong Office of the Privacy Commissioner for Personal Data has published three “Guidance Notes” to help data users comply with the Personal Data (Privacy) Ordinance (the “Ordinance”). These Notes are not legally binding, nor are they intended to serve as an exhaustive guide to the application of the Ordinance, but they provide good, practical examples and tips that the Commissioner has developed as it has implemented the Ordinance.

On January 25, 2012, the Article 29 Working Party (the “Working Party”) issued a Working Document providing guidance on data protection issues relating to the European Patients Smart Open Services (“epSOS”) project. epSOS is a pilot project focused on developing an information and communications technology infrastructure that enables access to patient health information (i.e., Patient Summaries) among different EU Member States for the purpose of providing medical treatment. The project also aims to facilitate the cross-border use of electronic prescriptions (i.e., ePrescriptions). epSOS involves the collaboration of a significant number of health care provider organizations and companies that contribute their knowledge and expertise to the project.

On July 13, 2011, Hong Kong’s Personal Data (Privacy) (Amendment) Bill 2011 (the “Bill”), was introduced in the Legislative Council. Although the Bill has not yet been subject to an official vote, there have been several noteworthy developments.

Monetary penalties are one mechanism in a suite of tools that the UK Information Commissioner’s Office (“ICO”) uses to encourage compliance with data protection regulations. The ICO generally uses monetary penalties to sanction deliberate or negligent breaches of the law, but the purpose is not to impose financial hardship but rather to “act as an encouragement towards compliance, or at least as a deterrent against non-compliance.” The following is a brief overview of the ICO’s authority to issue monetary penalties.

On February 7, 2012, the UK Ministry of Justice launched its Call for Evidence on the European Commission’s proposed general data protection regulation and criminal justice data protection directive (the “Proposals”). The Ministry is looking to gain perspective and solicit feedback on how the Proposals likely would impact organizations and individuals in the UK.

The Ministry of Industry and Information Technology of the People’s Republic of China (the “MIIT”) recently issued a regulation entitled “Several Provisions on Regulating Market Orders of Internet Information Services” (the “New Regulations”). The New Regulations, which will take effect on March 15, 2012, include significant new data protection requirements applicable to Internet information service providers (“IISPs”). Consistent with data protection regimes currently in place elsewhere in the world, IISPs will be required to provide much stronger protection for the personal data they collect from users in China, and will be subject to notice and consent requirements, collection limitations and use limitations.

In recent weeks, regulators in California and Illinois have issued guidance on responding to data security breaches, while UK and California authorities released online forms for organizations to use when providing notification of a breach to regulators.

In December 2011, the UK Information Commissioner’s Office (“ICO”) released a new breach notification form, reinforcing its expectation that organizations provide notification whether or not such notification is legally required. Sector-specific breach notification requirements were introduced in the UK by The Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011, and since May 2011, public electronic communication service providers have been required to notify the ICO, and in some cases affected individuals, in the event of a data security breach. All other organizations are strongly encouraged to notify the ICO of serious security breaches, and the fact that an incident was reported voluntarily is something the ICO takes into consideration when determining the appropriate enforcement action.

Throughout 2011, the UK Information Commissioner’s Office (“ICO”) escalated its use of data protection audits, encouraging organizations to submit to voluntary audits and seeking to increase its ability to conduct compulsory audits. Currently, the ICO has the authority to compel central government departments to undergo audits, but it would like to extend compulsory audits to include local government, the national health service and the private sector.

On January 26, 2012, the German Data Protection Commissioners (“DPAs”) of the federal states Rhineland-Palatinate and Hesse held a joint press conference to present their views on the European Commission’s legislative proposal for a comprehensive reform of current EU data protection rules. The day before, the European Commission proposed replacing the existing EU Data Protection Directive 95/46/EC with a Regulation that would be directly applicable in all European Member States and therefore not require implementing legislation on the national level.

On January 25, 2012, the European Commission released a data protection law reform package, including its proposed General Data Protection Regulation (the “Proposed Regulation”). The UK Information Commissioner’s Office (“ICO”) has reacted positively to the Proposed Regulation, in particular commending efforts to strengthen the rights of individuals, the recognition of important privacy concepts such as privacy by design and privacy impact assessments, and new accountability requirements to ensure organizations properly demonstrate and document their data protection safeguards and procedures.

On January 12, 2012, Hunton & Williams hosted an hour-long webinar on the current enforcement environment in the U.S. and EU. The webinar, Current Trends in Global Privacy Enforcement, covered issues ranging from the Federal Trade Commission’s tougher approach to investigations to increased monitoring of corporate privacy practices by European data protection authorities. Hunton & Williams speakers included Lisa J. Sotto, partner and head of the Global Privacy and Data Security practice, London partner Bridget Treacy, London senior attorney Rosemary Jay and Brussels ...

On December 28, 2011, UK Information Commissioner Christopher Graham outlined the ICO’s agenda for 2012 in a post on the ICO blog, highlighting the European Commission’s proposals for reviewing the EU data protection framework, the post-legislative scrutiny process with respect to the UK Freedom of Information Act (“FOIA”) and the ICO’s Information Rights Strategy. The Commissioner cautioned against allowing data protection compliance to fall by the wayside in the current, tough economic climate, especially given the inevitable reputational damage caused by big data breaches and the ICO’s power to impose fines.

As reported in BNA’s Privacy Law Watch, EU Member States are working on an overarching privacy framework agreement with the United States. The framework agreement, which may be used as a starting point for future negotiations, aims to reduce the amount of time and resources required to prepare new agreements between the European Union and the United States.

On January 25, 2012, the European Commission published its long-awaited legislative package to reform EU data protection rules. The package includes a regulation that covers data processing in the private sector and by public authorities and a directive covering data processing for criminal justice purposes, as well as a communication, a report on the protection of personal data processed in the framework of police and judicial cooperation, and an impact assessment with a summary.

On January 17, 2012, the European Commission initiated expedited infringement proceedings against Hungary over recent changes to its Constitution which are considered incompatible with EU law. The proceedings follow a number of changes made to the Hungarian Constitution that came into effect on January 1, 2012. Of particular concern to the Commission are amendments affecting the independence of the national data protection authority. The Hungarian government has one month to comply, or face enforcement proceedings in the European Court of Justice.

On November 30, 2011, the French Court of Cassation upheld a decision that excluded the application of the French Data Protection Act (Loi relative à l’informatique, aux fichiers et aux libertés) to an investigation conducted by the French Competition Authority (Autorité de la Concurrence) on the grounds that the search and seizure was authorized by an “freedoms and custody judge” (juge des libertés et de la détention).

According to a spokesperson at the European Commission, the publication of the proposal for the review of the EU Data Protection Directive (95/46/EC) has been postponed until late February or March 2012. The draft proposal was scheduled to be officially released in late January after it was leaked in December 2011. According to various sources, the proposal received negative responses from several Directorates-General over the course of the “inter-service consultation,” some of whom have voiced their concern that the proposed new framework would be stricter than the current legal framework and thus may have a negative impact on businesses. For example, parts of the proposal, such as the right to be forgotten, are viewed by some as potentially too burdensome for companies.

On December 13, 2011, the Information Commissioner issued updated guidance on compliance with recent changes to UK law governing the use of cookies (The Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011 (“Regulations”)). Organizations were given a twelve-month grace period to comply with the new law. Initial guidance on the Regulations was released on May 9, 2011, but the Information Commissioner characterized that guidance as merely a “starting point for getting compliant rather than a definitive guide,” signaling that further advice would follow if appropriate. 

On December 21, 2011, Mexico issued the final version of its Regulations of the Federal Law for the Protection of Personal Data Held by Private Parties (Reglamento de la Ley Federal de Protección de Datos Personales en Posesión de los Particulares). The regulations, which contain mostly minor changes to the prior draft that was released in October, will take effect on December 22, 2011. Notable updates in this final draft include:

• clarification of notice and consent requirements;
• changes to restrictions on cloud computing;
• updates to requirements regarding data transfers; and

On December 8, 2011, the Article 29 Working Party (the “Working Party”) adopted an Opinion on the European Advertising Standards Alliance (“EASA”) and IAB Europe best practice recommendations for the online behavioral advertising (“OBA”) industry to comply with Article 5.3 of the revised e-Privacy Directive 2002/58/EC (the “cookie clause”). The cookie clause requires a user’s informed consent for the use of cookies and similar technologies that store and access information in the user’s terminal device. Finding practical ways of complying with the cookie clause has proven challenging for the OBA industry, which relies heavily on these kinds of tracking mechanisms.

Shortly before Viviane Reding, Vice-President of the European Commission and Commissioner for Justice, Fundamental Rights and Citizenship, gave her keynote address on binding corporate rules (“BCRs”) at the IAPP Europe Data Protection Congress in Paris, Hunton & Williams co-authored two articles on BCRs with the French Data Protection Authority (“CNIL”):

Lithuanian firm LAWIN Lideika, Petrauskas, Valiūnas ir partneriai reports that recent amendments to Lithuania’s Law on Legal Protection of Personal Data and the Law on Electronic Communications have established a breach notification requirement. Specifically, providers of publicly-available electronic communications services or of public communications networks must notify the data protection authority of data security breaches, and, when the breach is likely to have an adverse effect on the privacy of affected individuals, the data controller also may be required ...

On November 29, 2011, at the International Association of Privacy Professionals (“IAPP”) Europe Data Protection Congress in Paris, France, Viviane Reding, Vice President of the European Commission and Commissioner for Justice, Fundamental Rights and Citizenship, provided insight into details of the proposals for the revised EU data protection framework. She focused explicitly on solutions for international data transfers, promoting Binding Corporate Rules ("BCRs") as a solution that can offer a simplified, yet comprehensive, structure for safeguarding international flows of data. Commissioner Reding referred to BCRs as offering the possibility of consistent enforcement and legal certainty, without stifling innovation.

On November 17, 2011, the German Association for Data Protection and Data Security (“GDD”) held its 35th Privacy Conference (“DAFTA”) in Cologne, Germany. At the opening plenary session, Paul Nemitz, Director for Fundamental Rights and Citizenship of the European Commission, announced that the European Commission plans to implement a Regulation that is directly applicable to all EU Member States, to harmonize data protection laws in Europe.

On November 16, 2011, the French Data Protection Authority (the “CNIL”) published its Annual Activity Report for 2010 (the “Report”) highlighting its main 2010 accomplishments and outlining some of its priorities for the upcoming year. This year’s Report covers events that occurred since last year’s publication of the Annual Activity Report for 2009.

On November 3, 2011, the Labor Chamber of the French Court of Cassation (the “Court”) upheld a decision against a company that unlawfully used a geolocation device to track the company car of one of its salesmen. Although the company notified the salesman that a geolocation device would be used to optimize productivity by analyzing the time he spent on business trips, the device was in fact used to monitor his working hours, which ultimately led to a pay cut.

On November 2, 2011, Germany’s Federal Minister of the Interior met with stakeholders from the social networking industry and announced the development of a self-regulatory code for social networks. According to the Ministry’s press release, the code is aimed at enhancing data protection, consumer protection and the protection of minors on the Internet.

In endorsing the initiative, the Interior Minister stated, “self-regulation can also prove efficient in the social networking context, allowing for quick and flexible arrangements that enhance transparency and user ...

In the past two months, Chinese national authorities amended a law, and provincial authorities in Jiangsu Province issued a new regulation, both of which include provisions concerning the protection of personal information.

Law of the People’s Republic of China on Resident Identity Cards

Any Chinese citizen who resides in China is required to obtain a resident identity card when he or she turns 16 years old. The cards carry information which generally would be considered personal information under Chinese law, such as name, gender, date of birth, home address and identity card number. The Law of the People’s Republic of China on Resident Identity Cards, a national law originally enacted in 2003, was amended on October 29, 2011, to include the following new provisions on the protection of personal information:

On November 2, 2011, following welcome comments by Federal Institute for Access to Information and Data Protection (“IFAI”) Commissioner Jacqueline Peschard, the 33rd International Conference of Data Protection and Privacy Commissioners opened in Mexico City with an examination of the phenomenon of “Big Data” as a definer of a new economic era. In a wide-ranging presentation, Kenneth Neil Cukier of the Economist drew into clear relief the possibilities and problems associated with combining vast stores of data and powerful analytics. He highlighted the growing ability to correlate seemingly unrelated data sets to predict behavior, reveal trends, enhance product performance and safety and derive meaning. In his remarks Cukier noted that, in an era of Big Data, much of the decision-making about data collection and use goes beyond traditional notions of privacy, touching on ethics and free will. Noting that the printing press led to the development of free speech laws, he left open the question of how Big Data may change the legal landscape.

On November 1, 2011, the Centre for Information Policy Leadership released a discussion document entitled “Implementing Accountability in the Marketplace,” at the 33rd International Conference of Data Protection and Privacy Commissioners in Mexico City. The document reflects the collaborative effort of experts from Canada, Europe and the United States, and provides a comprehensive summary of the third year of the Centre’s work with the Accountability Project. It examines the requirements and benefits of accountability when it is applied across the marketplace, and ...

On November 2-3, 2011, Mexico’s Federal Institute for Access to Information and Data Protection (“IFAI”) will host the 33rd International Conference of Data Protection and Privacy Commissioners in Mexico City. Marty Abrams, President of the Centre for Information Policy Leadership at Hunton & Williams LLP, is the chairman of the Conference’s advisory panel and principal advisor to Conference organizers on program content. Hunton & Williams is a proud sponsor of the event which will feature Hunton representatives as speakers or moderators on multiple panels and plenary sessions, including the following:

Members of Parliament on the House of Commons Justice Select Committee have called for courts in the United Kingdom to be given greater powers to imprison and fine individuals who breach the Data Protection Act (“DPA”). The Committee stated in its October 18, 2011 report that the current penalties for unlawfully obtaining personal data (under Section 55 of the DPA) are an inadequate deterrent, and urged the government to exercise its power to introduce prison sentences without delay. Although currently a magistrates’ court can issue fines of up to £5,000 for breaches of Section 55 (and the Crown Court can impose unlimited fines), in practice, penalties often are limited to only a few hundred pounds.

On October 24, 2011, Israel’s Data Protection Authority, the Israeli Law, Information and Technology Authority in the Israeli Ministry of Justice (“ILITA”), announced significant developments in an information theft case affecting more than nine million Israeli citizens. In 2006, a contract worker hired by Israel’s Ministry of Welfare and Social Services downloaded a copy of Israel’s population registry to his home computer. The registry later fell into the hands of a software developer and a hacker before being disseminated on the Internet along with a program that allowed users to run searches and queries on the data. The stolen personal information included full names, identification numbers, addresses, dates of birth, dates of immigration to Israel, family status, names of siblings and other information.

On October 20, 2011, Mexico’s Ministry of Economy made public an update to its proposed Regulations to the Federal Law for the Protection of Personal Data Held by Private Parties. The new draft regulations, which contain changes made in light of public comments on the prior version, will take effect if they receive final executive approval, which may happen later this year. The updates to the draft regulations include:

• Rules specific to cloud computing
• Clarification of notice requirements
• Clarification of consent requirements
• Exemptions for certain business contact ...

On October 10-12, 2011, the Council of Europe’s Bureau of the Consultative Committee of the Convention for the Protection of Individuals with regard to the Automatic Processing of Personal Data (known as the “T-PD-Bureau”) met in Strasbourg, France, to discuss, among other things, amending the Council of Europe’s Convention 108 and Additional Protocol. Convention 108 (together with the Protocol), which underlies the European Union’s legal framework for data protection, is the only legally-binding international convention that addresses data protection. Amendment of the Convention is also closely linked to the current review of the EU data protection framework.

On October 17, 2011, the French Data Protection Authority (the “CNIL”) launched a public consultation on cloud computing (the “Consultation”). The Consultation seeks to gather opinions from stakeholders (clients, providers, consultants) regarding cloud computing services for businesses, to identify legal and technical solutions that address data protection concerns while taking into account the economic interests involved.

On October 10, 2011, the French Data Protection Authority (the “CNIL”) released a video of newly-elected Chairwoman Isabelle Falque-Pierrotin presenting her priorities and vision for the future of the CNIL. Ms. Falque-Pierrotin was elected as the new Chair of the CNIL on September 21, 2011.

On September 23, 2011, the Labor Chamber of the Court of Appeals of Caen (the “Court”) upheld a decision to suspend a whistleblower program implemented by a U.S. company’s French affiliate, despite the fact that the French Data Protection Authority (the “CNIL”) had inspected and approved the program prior to implementation. This decision follows recent amendments to the legal framework for whistleblower programs in France.

On September 13, 2011, the Singapore Ministry of Information, Communications and the Arts (the “Ministry”) published a Proposed Consumer Data Protection Regime for Singapore, outlining possible ideas for a data privacy framework and soliciting comments from the public. A few of the suggestions from the Ministry’s proposal that appear most likely to be reflected in a final data privacy law are outlined below.

On October 7, 2011, the Constitutional Court of Colombia approved a landmark omnibus data protection law.  According to its press release, the Court approved almost all provisions in the legislation, known as Ley estatutaria No. 184/ 10 Senado, 046/10 Cámara, but it took issue with Article 27 (which addresses the government’s processing of certain data), Article 29 (which addresses the expunging of certain criminal records) and Articles 30 and 31 (which both address intelligence and counterintelligence databases).  Many of the remaining provisions reflect a strong European influence.  Some highlights include:

• With certain exceptions, the law prohibits the processing of personal data without the data subject’s prior consent.  When the personal data are sensitive data (e.g., health data), the consent must take the form of an explicit authorization.
• The law permits cross-border transfers of personal data to countries that lack adequate data protection laws only in specified circumstances, such as (1) when the data subject has given express and unequivocal consent for the transfer (2) the transfer is necessary for the performance of a contract between the data subject and the data controller, or (3) with the approval of the Superintendence of Industry and Commerce.
• The processing of children’s personal data is generally prohibited.
• Data subjects have access rights.

On September 29, 2011, the German federal and state data protection authorities (“DPAs”) issued a resolution on cloud computing and compliance with data protection law. The publication was released in conjunction with the DPAs’ 82nd annual conference.

On September 22, 2011, new provisions under the French Data Protection Authority’s (“CNIL’s”) internal regulation (Délibération n°2011-249 du 8 septembre 2011) came into force. The CNIL recently amended its regulations to incorporate a new chapter (Chapter IV bis) that sets forth a specific procedure for issuing privacy seals in accordance with the French Data Protection Act. The Act authorizes the CNIL to “issue a quality label to products or procedures intended to protect individuals with respect to processing of personal data, once [the CNIL] has recognized them as in compliance with the provisions of the Act.”

On Tuesday, September 27, 2011, the European Privacy Officers Forum (“EPOF”) celebrated its 10th anniversary with a gala reception at the BELvue Museum in Brussels. EPOF is composed of EU-based data protection compliance officers and internal legal counsel from over 30 multinational companies and public-sector institutions who meet three times a year in Brussels to exchange ideas and to hear presentations by data protection authorities and other government representatives. The gala, which was attended by approximately 100 people, featured opening remarks from Peter Hustinx, European Data Protection Supervisor, the Honorable William E. Kennard, U.S. Ambassador to the EU, and Paul Nemitz, Director of Fundamental Rights and Citizenship of the European Commission.

Hunton & Williams announces that Rosemary Jay, formerly head of the privacy practice at Pinsent Masons and the former head of the legal team at the UK Information Commissioner’s Office, will join the firm’s Privacy and Data Security practice in October.  Ms. Jay will be based in the firm’s London office.  As a senior lawyer, Ms. Jay will bring more than 20 years of data protection experience to Hunton & Williams, enhancing both the firm’s renowned privacy practice and its Centre for Information Policy Leadership.  

On September 19, 2011, Privacy Piracy host Mari Frank interviewed Lisa J. Sotto, partner and head of the Global Privacy and Data Security practice at Hunton & Williams LLP, on KUCI 88.9 FM radio in Irvine, California.  In the interview, Ms. Sotto discussed critical current privacy and data security issues, including lessons learned from the recent data breaches, the regulatory framework in the U.S. and EU, and expected legislative changes in the privacy arena globally.

Listen to the Privacy Piracy interview.

On September 21, 2011, the board of the French Data Protection Authority (the “CNIL”) elected Isabelle Falque-Pierrotin as its new Chair, following Alex Türk’s resignation which he officially tendered at the board meeting.

On June 17, 2011, the National Assembly of the Republic of Angola passed Law 22/11 on Personal Data Protection.  The omnibus privacy legislation applies to the automated and non-automated processing of personal data by controllers based or operating in Angola, or subject to, or using equipment governed by, Angola’s laws.  Some highlights of the law are listed below.

On September 14, 2011, the Article 29 Working Party (the “Working Party”) met with representatives of the European Advertising Standards Alliance (“EASA”) and IAB Europe, to discuss the industry’s new self-regulatory code of conduct for online behavioral advertising (the “Code”), which was released on April 14, 2011.

On September 14, 2011, UK Information Commissioner Christopher Graham said that the private sector “isn’t as good as it thinks it is” when it comes to data protection compliance, and that many of the compliance problems that arise originate in the private sector.  While giving evidence to the House of Commons Justice Select Committee, the Commissioner criticized the private sector and, in particular, banks and other financial services companies.

On September 15, 2011, the data protection authority of the German federal state of Hamburg (the “DPA”) published a press release confirming that Google has significantly improved compliance with respect to the implementation of Google Analytics in Germany.  This finding is the result of two years of fruitful dialog between Google and the DPA, which was acting on behalf of the conference of German data protection authorities responsible for the private sector (the “Düsseldorfer Kreis”).

On September 14, 2011, Alex Türk announced that he will be resigning his position as Chairman of the French Data Protection Authority (the “CNIL”), in accordance with a recent amendment to the French Data Protection Act (Loi n° 2011-334 du 29 mars 2011 relative au Défenseur des droits).  The amendment prohibits the CNIL’s Chairman from holding any other elected office or public position.  Although this restriction does not enter into force until September 1, 2012, Mr. Türk, who also serves as a senator in the French Parliament, chose to resign prior to the upcoming French ...

On September 8, 2011, Richard Allan, Facebook’s Director of European Public Policy, met with the German Federal Ministry of the Interior (the “Ministry”) and endorsed the Ministry’s initiative for a future self-regulatory code for social networks with a focus on data security, consumer protection and the protection of minors.

On September 12, 2011, the Commissioner for Data Protection and Freedom of Information of the German federal state of North Rhine-Westphalia (“DPA”) imposed a fine of €60,000 on Easycash GmbH (“Easycash”), a leading German service provider for electronic payments.

Mexico’s Federal Institute for Access to Information and Data Protection ( “IFAI”) will host the 33rd International Conference of Data Protection and Privacy Commissioners in Mexico City on November 2-3, 2011.  This year’s conference, entitled “Privacy: The Global Age,” will focus on the challenges associated with managing and protecting personal data in an era characterized by the constant, instantaneous transfer of information across the globe.  IFAI President Jacqueline Peschard discussed the conference in further detail in an interview with Marty Abrams ...

On August 5, 2011, the Beijing Second Intermediate People’s Court announced its decision in what is reported to be the largest criminal case to date involving the misuse of personal information in Beijing, China.  The Court based its ruling on Article 7 of the Seventh Amendment to the Criminal Law, which applies to three types of criminal activities: (1) illegal sale of citizens’ personal information, (2) illegal provision of citizens’ personal information, and (3) illegal access to citizens’ personal information.

On August 24, 2011, France’s new law concerning electronic communications (Ordonnance n° 2011-1012 du 24 août 2011 relative aux communications électroniques, or the “Ordinance”) came into force.  The Ordinance implements the provisions of the revised EU Directive 2002/58/EC (the “e-Privacy Directive”) with respect to the French Data Protection Act of 1978, the French Postal and Electronic Communications Code and the French Consumer Protection Code.  In particular, the Ordinance introduces new provisions under the French Data Protection Act, which impose an obligation on electronic communication service providers to provide notice in the event of a data security breach. 

On August 24, 2011, France’s new law concerning electronic communications (Ordonnance n° 2011-1012 du 24 août 2011 relative aux communications électroniques, or the “Ordinance”) came into force.  The Ordinance implements the provisions of the revised EU Directive 2002/58/EC (the “e-Privacy Directive”) with respect to the French Data Protection Act of 1978, the French Postal and Electronic Communications Code and the French Consumer Protection Code.  Specifically, the Ordinance amends the existing legal framework concerning cookies and introduces an opt-in regime for the use of cookies.

On August 19, 2011, the Data Protection Commissioner’s Office of the German federal state of Schleswig-Holstein (“ULD”) ordered all businesses in that state “to shut down their fan pages on Facebook and remove social plug-ins such as the ‘like’-button from their websites.”  Although this warning is specific to Facebook users, the regulator’s explanation of its motives reveals a fundamental concern about common data analytics practices:

“By using the Facebook service traffic and content data are transferred into the USA and a qualified feedback is sent back to the website owner concerning the web page usage, the so called web analytics (Ger.: Reichweitenanalyse).  Whoever visits facebook.com or uses a plug-in must expect that he or she will be tracked by the company for two years.  Facebook builds a broad individual and for members even a personalised profile.  Such a profiling infringes German and European data protection law.  There is no sufficient information of users and there is no choice; the wording in the conditions of use and privacy statements of Facebook does not nearly meet the legal requirements relevant for compliance of legal notice, privacy consent and general terms of use.”

On July 13, 2011, the Belgian Privacy Commission (the “Belgian DPA”) signed a Protocol with the Ministry of Justice which significantly simplifies the authorization procedure for binding corporate rules (“BCRs”) under Belgian law.  The Protocol was just made public on the Belgian DPA's website. 

On August 24, 2011, the Government of India’s Ministry of Communications & Information Technology issued a clarification regarding India’s new privacy regulations, known as the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 (the “Rules”), under Section 43A of the Information Technology Act 2000.

The Department of Commerce released an English translation of Peru’s Law for Personal Data Protection (Ley de Protección de Datos Personales, Ley No. 29733).  The law passed Peru’s Congress on June 7, 2011, and was signed by the president July 2, 2011.  Peru’s adoption of this new law is in keeping with a recent trend in Latin America, where Uruguay, Mexico and Colombia also have passed privacy legislation.

On July 27, 2011, the Ministry of Industry and Information Technology of the People’s Republic of China (the “MIIT”) published a draft rule including provisions regulating the processing of personal information by “Internet Information Service Providers.”  The draft rule, entitled “Provisions on the Administration of Internet Information Services” (the “Draft Provisions”), is not the first rule regulating Internet information services in China.  In 2000, the MIIT enacted the “Measures for the Administration of Internet Information Services” (the “Measures”), which took effect on September 25, 2000.  However, the Measures do not include any explicit provisions addressing the protection of personal information.

As we previously reported, the Mexican government has developed draft regulations for the implementation of Mexico’s Federal Law on the Protection of Personal Data in the Possession of Private Parties (Ley Federal de Protección de Datos Personales en Posesión de los Particulares). The U.S. Department of Commerce recently circulated an English translation of the draft regulations. Public comments on the draft are due on August 3, 2011, and Mexican officials have indicated they will not grant extensions for late submissions. A final version of the regulations is ...

As reported in BNA’s Privacy Law Watch, on July 25, 2011, Russian President Dmitry Medvedev signed a new federal law amending Russia’s personal data privacy law, “On Personal Data.” The amended law, which was made public on July 27 and is effective retroactively from July 1, 2011, imposes new rules on international data transfers. As we previously reported, and as noted by the BNA, Russia had been considering improving its data protection regime and has enacted two other laws regarding the protection of personal data in the past several weeks.

The Hong Kong Privacy Commissioner has issued a document soliciting comments regarding a proposal to require a wide range of data users to submit information about their activities to the Office of the Privacy Commissioner for Personal Data.  The proposal would be carried out pursuant to the Hong Kong Privacy Ordinance, which authorizes the Privacy Commissioner to require certain data users to submit data user returns.  Under the Ordinance, a “data user return” is a form certain data users must submit to the Privacy Commissioner for purposes of maintaining a data user registration database.  A “data user” is defined as “a person who, either alone or jointly or in common with other persons, controls the collection, holding, processing or use of [personal] data” (emphasis added).

On July 13, 2011, the Article 29 Working Party (the “Working Party”), adopted an Opinion on the concept of consent as a legal basis for processing personal data, which includes recommendations for improving the concept in the context of the ongoing review of the EU data protection framework.  The Opinion also analyzes the conditions for valid consent under EU data protection law (that consent must be “freely given,” “specific,” “unambiguous,” “explicit,” “informed,” etc.), and clarifies the obligations of data controllers seeking consent.  In addition, the Opinion provides examples of valid and invalid consent with respect to company social media, medical research, body scanners, PNR data and online gaming.

Adam Kardash from Heenan Blaikie LLP in Canada reports that Industry Canada and the Canadian Radio-television and Telecommunications Commission (“CRTC”) have released draft regulations for Canada’s Anti-Spam Legislation (“CASL”).  CASL imposes a consent-based anti-spam regime that restricts organizations’ ability to send commercial electronic messages.  Industry Canada and the CRTC are charged with the task of implementing regulations under CASL.