News Archives

Tuesday, July 31, 2018

Omnibus Data Protection Bills Continue to Spread

July was a busy month for anyone tracking the spread of comprehensive data protection legislation around the globe.  Besides the momentous development of the government of India publishing a draft bill closely aligned with the EU’s General Data Protection Regulation, and Brazil being on the cusp of enacting its GDPR-inspired General Data Protection Law, progress towards omnibus data protection legislation was reported in five other countries.  In Barbados, the Ministry of Small Business, Entrepreneurship and Commerce launched a public consultation on the draft Data Protection Act 2018.  In Ecuador, the Ministry of Telecommunications and Information Society issued a position paper on the urgent need for data protection legislation, setting a goal of having a bill submitted to the National Assembly by the end of the year.  In Iran, the Minister of Communications announced that the government had prepared a draft data protection act for consideration by the Parliament and was interested in discussing data protection issues with the EU.  In Kosovo, the Government submitted a draft Personal Data Protection Law to the Assembly modeled upon the GDPR.  In Pakistan, the Ministry of Information Technology and Telecommunications released a draft Personal Data Protection Bill for public consultation.

Omnibus data protection bills in India and Brazil, and now in Iran and Pakistan.  China adopting comprehensive protections across a number of laws.  Hmm, perhaps when word emerges of a comprehensive data protection bill in North Korea, Congress will figure out that our increasingly exceptional piece-meal sectoral approach to privacy protection is not fit for purpose in the digital age.

Monday, July 30, 2018

Gov’t of India Publishes Draft Data Protection Bill

On July 27, India’s Ministry of Electronics and Information Technology (MEIT) published the country’s long-awaited draft data protection bill, prepared by the committee chaired by former Supreme Court Justice B.N. Srikrishna.  A lengthy commentary on the nature of privacy and the draft legislation, released at the same time, described the approach taken in the bill as a “template for the developing world” and a “Fourth Way” triangulating between the data protection models advanced by the US, the EU and China. At the same time, the draft appears to be closely aligned with the GDPR, being comprehensive rather than sectoral; establishing a data protection authority; requiring the appointment of data protection officers; requiring data protection impact assessments when needed; including cross-border data transfer restrictions; requiring notification of data breaches to the DPA and if warranted to individuals; including the right to data portability and the right to be forgotten; and setting fines of up to 4% of annual turnover.  A notable divergence from the GDPR is the bill’s requirements for data localization with respect to financial and health data.  Following a period of public consultation and likely adjustments as a result, the Personal Data Protection Bill will be submitted to the Parliament of India.

Friday, July 20, 2018

EU and Japan Announce Plans for Reciprocal Adequacy Findings

On July 17, the European Commission announced that the EU successfully concluded talks with Japan, begun in January 2017, with an agreement to recognise each other's data protection systems as equivalent.  The announcement was unusual in that it acknowledges that Japan has a number of significant additional safeguards to put in place before the Commission will be able to adopt an adequacy decision.  This unprecedented pre-approval reflects the EU’s close cooperation with Japan as evidenced in the same day’s announcement of the EU-Japan Economic Partnership Agreement, a pact which will create the world’s largest open trade zone covering over 600 million people.

A report that both the EU and Japan expect the Commission’s adequacy decision to be adopted in the autumn of this year seems optimistic.  An detailed analysis by Prof. Graham Greenleaf, published by Privacy Laws & Business, describes the Commission’s “many rivers to cross” on the EU side, including a favorable opinion from the European Data Protection Board and the approval of the 28 EU member states, while on the Japanese side, the nation’s DPA will need to formulate and adopt a very complex and customized set of Supplementary Rules under its Protection of Personal Information Act (PPIA).  The new requirements to be met by Japan will need to be completed before the half-dozen review processes required for an adequacy decision by the EU can proceed. 

Thursday, July 5, 2018

European Parliament Calls for Suspension of Privacy Shield

On July 4, the European Parliament voted in favor of a resolution advanced by its LIBE Committee urging the European Commission to suspend the EU-U.S. Privacy Shield framework if the U.S. government does not fully comply with its obligations under the agreement by September 1, 2018.  The vote on the resolution was 303 to 223, with 29 abstentions, a result only marginally different than the vote on a similar resolution in April 2017, which was 306 to 240, with 40 abstentions.  Amongst the concerns driving passage of the resolution was enactment of the Clarifying Lawful Overseas Use of Data Act (or CLOUD Act; failure to appoint a permanent Ombudsperson; failure to re-establish the Privacy and Civil Liberties Oversight Board (PCLOB); and the fact that both Facebook and Cambridge Analytica were Privacy Shield participants when the scandal surrounding their data massive data breach and misuse came to light.  

Responding to the vote, the European Commission stated that it intends to continue to work with the U.S. to improve the implementation of Privacy Shield, noting that some 4,000 companies are currently using it.  The second joint annual review of Privacy Shield is scheduled for this October.  If history is any guide, progress will be reported by both the EU and the U.S., the Commission will endorse the outcome, the European Data Protection Board will express its lack of satisfaction, and Privacy Shield will muddle along, until struck down, like Safe Harbor, by the CJEU.  Deja-vu all over again.