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The GDPR is on its way towards implementation into French law following a constitutional challenge

Following on from the article published on the dataprotection.blog on 24 January 2018 “French GDPR Implementation Bill – for French Data Protection Authority (“CNIL”) it could not come soon enough!”, Charlotte Gerrish provides us with the latest update on the status of the French GDPR Implementation Bill which, after surviving an attack of “unconstitutionality” before the French Constitutional Council, is now on its way into force.

As we stated back in January 2018, the French legislature had been fairly slow in pushing forward with the implementation of the GDPR into French national law. The progress of the Bill had not been without issues. On 16 May 2018, just 9 days before the GDPR was due to come into force, at least 60 French senators referred the Bill to the Constitutional Council claiming that certain provisions were unconstitutional and therefore contrary to French law and public policy (Affaire No. 2018-765 DC).

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What changes GDPR will bring?

While some tend to portray new European Union (EU) General Data Protection Regulation (“GDPR”) as menacing Apocalypse coming from nowhere, fact is that GDPR is an “upgrade” of existing EU data protection laws. EU Data Protection Directive (Directive 95/46/EC) was adopted already in 1995. In some countries – like Germany and Sweden – data protection laws were introduced even much earlier – in 1970s and 1980s.

GDPR keeps the basic principles of Data Protection Directive and ads new “layer” to it, aiming to unify data protection in all EU countries and bring more rights and control over data use back to individuals. In fact, GDPR incorporates guidance of data protection authorities and best practice in data protection. There almost nothing in GDPR that wouldn’t already exist somewhere. For example, data protection by design and by default principle originated back in 1980s, data protection officers already are mandatory requirement in Germany, and breach notification exist in communication sector for years.

But let’s look what exactly are the changes GDPR brings us.

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French GDPR Implementation Bill – for French Data Protection Authority (“CNIL”) it could not come soon enough!

If you are a regular reader of the dataprotection.blog, you probably already have a high level understanding of the EU General Data Protection Regulation, otherwise known as the “GDPR”.

The development of the digital era has forced us to rethink the framework that is applicable to personal data.
– French Minister of Justice, Nicole Belloubet, 13th December 2017

As you may be aware, the Member States are slowly but surely debating implementing legislation in order to transpose the GDPR into national law, in accordance with their own procedural requirements. France is no exception. As such, on 13th December 2017, Nicole Belloubet, the Minister of Justice presented the bill which sets out how France shall implement the provisions of the GDPR into existing French Data Protection Law to the French Council of Ministers.

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Latest papers on privacy and data protection – May

Kaleidoscope on the Internet of Toys

Report by the Joint Research Centre (JRC) on safety, security, privacy and societal questions emerging from the rise of the Internet of Toys – “Internet Connected Toys that constitute, along with the wave of other domestic connected objects, the Internet of Things”.

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Who Watches the Watchers?

Report from Citi GPS: Global Perspectives & Solutions on how consumers are tracked, and how the data that is collected and analyzed, and how consumers feel about that.

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Practical Guide to Efficient Security Response

Whitepaper on data breaches with proposals how to decrease response time. It includes seven security operations capabilities you need, a handy checklist to evaluate your security operations capabilities, and best practices for efficient security response.

Download whitepaper

Assessing Mobile App Data Privacy Risk

paper on mobile-risk scoring and how to do that in practice. It was carried out by IAPP and Kryptowire and is based on input of 400 privacy professionals.

Read summary of paper

UN Report on Governmental Surveillance

UN Special Rapporteur on the Right to Privacy, Joseph Cannataci, presented his report on governmental surveillance and access to personal data from a national and international perspective.

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How  to Talk About the Right to Privacy at the UN

A brief guide on United Nations stand on privacy. Guide is prepared by Privacy International.

Read guide

Be Compromise Ready: Go Back to the Basics. 2017 Data Security
Incident Response Report

Survey on data security and incident response trends, and how to minimise data breach risks.

Read survey

Annual Report of the Data Protection Commissioner of Ireland

Annual report of the Data Protection Commissioner of Ireland for yer 2016.

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Certifications, Seals and Marks under the GDPR and Their
Roles as Accountability Tools and Cross-Border Data Transfer
Mechanisms

Discussion paper on Certifications, seals and marks under the GDPR prepared by Centre for Information Policy Leadership. It looks at regulation provided in GDPR and benefits of such mechanisms.

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Recent ICO guidances and feedback requests on GDPR

Recently UK Information Commissioner Office (ICO) published several GDPR guidances and requests for public feedback.

Guidance on consent

In March ICO published draft guidance on consent under the EU GDPR. Guidance was opened for public feedback till March 31, and ICO now aims to publish this guidance in May 2017.

Our guidance on consent explains our recommended approach to compliance and what counts as valid consent. It provides practical help to decide when to rely on consent, and when to look at alternatives. It also explains the key differences with the DPA and gives advice about existing DPA consents.

Reed the feedback on ICO’s guidelines:

Feedback request on profiling and automated decision-making

In April ICO published its feedback request on profiling and automated decision-making. It represents ICO’s initial thoughts on certain aspects of profiling in the GDPR, however, ICO warns, it should not be interpreted as guidance. Responses will help to form ICO’s contribution to the WP29 guidelines that will be published later this year.

The discussion paper published today highlights the key areas of profiling we feel need further consideration. This includes subjects like marketing, the right to object and data minimisation – and we want your feedback. We’d like to hear the views of our stakeholders and get examples of best practice before 28 April 2017.

Call for Feedback on GDPR derogations

ICO has published its call for feedback on derogations under GDPR.

For all derogations, stakeholders are encouraged to submit their views through the online ‘Call for Views’, uploading research and/or data where relevant. This exercise is to capture views on if and how the government should implement the defined flexibilities permitted within the GDPR.

Consultation closes at midday on 10 May 2017.

Update on paper on big data

In March ICO published updated version of paper on big data, artificial intelligence and machine learning. This paper sets out the ICO’s views on issues and how they relate to the GDPR.

CNIL launches GDPR consultation

On February 23, 2017, the French Data Protection Authority CNIL launched a public online consultation on three topics – consent, profiling and data breach notification – regarding the implementation of the EU General Data Protection Regulation (“GDPR”). Those are the same topics earlier this year identified by Article 29 Working Party in its Action plan

With this consultation CNIL aims to collect specific questions regarding the GDPR, potential difficulties in interpreting the GDPR, and examples of best practices. Responses will be also used in Article 29 Working Party discussions.

 

GDPR guidance on data portability, DPOs and lead authority

In December the Article 29 Working Party (WP29), an advisory body made up of all the EU national data protection authorities, has published three long awaited guidelines and frequently asked question (FAQ) on General Data Protection Regulation (GDPR). Guidelines covers following topics:

You can submit any additional comments on guidelines until the end of January 2017.

Balancing the interests in big data processing

A paper from Anons looks at challenges to big data analytics under upcoming GDPR (General Data Protection Regulation) and legal solutions to them. Although new obligations imposed by the GDPR, they do require new technical and organizational measures to protect big data.

The body of this paper describes in detail the regulatory background, technological innovations, and practical applications of Controlled Linkable Data, leading to the maximization of data value and individual privacy in a GDPR-compliant manner.

Download paper

EU ePrivacy Regulation proposed

Yesterday, January 10, 2017, European Commission announced its proposal for new Regulation on Privacy and Electronic Communications (ePrivacy Regulation) that will supplement General Data Protection Regulation (GDPR) and replace existing ePrivacy directive.

Aim of new ePrivacy regulation is to harmonise data protection framework relating to electronic communications within the European Union and ensure consistency with the GDPR. Main changes introduced by ePrivacy Regulation are:

  • Greater scope of coverage. If current ePrivacy Directive only applies to traditional telecoms operators, new rules will also cover new providers of electronic communications services, such as WhatsApp, Facebook Messenger, Skype, Gmail, iMessage, or Viber.
  • Same law to whole EU. Current Directive that has to be adapted into each Member State’s law will be replaced with a directly applicable Regulation meaning the same ruleas and protection for electronic communications.
  • Protection for content and metadata. Privacy will be guaranteed for both content and metadata derived from electronic communications (e.g. time of a call and location). Under the proposed rules, operators will have to anonymis or deleted both content and metadata if users have not given their consent, unless the data is required, for instance, for billing purposes.
  • Simpler rules on cookies. Regulation will streamline so called “cookie provision” that resulted in an overload of consent requests for internet users. New rules will provide an easy way to accept or refuse the tracking of cookies and other identifiers in case of privacy risks. No consent will be needed for non-privacy intrusive cookies improving internet experience (e.g. to remember shopping cart history) or cookies set by a visited website counting the number of visitors to that website.
  • Opportunities for new services. With a customers consent traditional telecoms operators will have more opportunities to use communications content and/or metadata data to provide additional services.
  • Protection against spam. Proposed Regulation bans unsolicited electronic communication by any means including emails, SMS and also by phone calls if users have not given their consent. Member States may opt for a solution that gives consumers the right to object to the reception of voice-to-voice marketing calls, for example by registering their number on a do-not-call list. Marketing callers will need to display their phone number or use a special pre-fix that indicates a marketing call.
  • More effective enforcement. The enforcement of the confidentiality rules in the Regulation will be the responsibility of national data protection authorities.

Commission emphasis that the proposed Regulation on Privacy and Electronic Communications will increase the protection of people’s private life and open up new opportunities for business.

Breaches of ePrivacy regulation will be punishable under GDPR and mean penalties up to EUR 20 million or 4% of the total worldwide annual turnover of company group, whichever is higher.

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