GDPR

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On March 21, 2019, the Advocate General (AG) of the highest EU Court (the Court of Justice of the European Union (CJEU)) issued an opinion (opinion) in the Planet49 case[1] on what constitutes valid consent for cookies under the Data Protection Directive, the GDPR, and the e-Privacy Directive.

In particular, the AG opines that: 1) a pre-ticked checkbox that users must untick to refuse consent does not constitute valid consent; 2) consent for cookies should not be bundled with other consents; and 3) users must be informed about the cookies’ lifespan and the third parties accessing the cookies. AG opinions are not binding on the CJEU, but are often influential. If the CJEU follows the AG Opinion, it will likely impact widely-adopted cookie consent practices in the EU and underlying business models that rely on such consent.
Continue Reading CJEU Advocate General Opinion Calls for Active and Separate Cookie Consents

On January 23, 2019, the European Data Protection Board (EDPB) issued an opinion (Opinion) on the interplay between the Clinical Trial Regulation (CTR) and the General Data Protection Regulation (GDPR), an issue which has been the subject of intense debate and that resulted in a draft, and still non-public, FAQ prepared by the EU Commission. The Opinion comments on the draft FAQ and provides some insight on data protection regulators’ view on how the GDPR applies to patient data collected as a part of a clinical trial.

In short, the EDPB takes the position that consent under the GDPR, and informed consent under the CTR, are different concepts, and that various legal grounds, including consent, are available under the GDPR to process patient personal data in the clinical trial context. Practically speaking, organizations will have to conduct a case-by-case assessment of the various options available.
Continue Reading EDPB Opinion on Consent and Legal Basis in Clinical Trials

In July 2018, the French data protection authority (the CNIL) issued two public formal notices against two marketing platform providers—

Teemo1 and Fidzup2—for failing to obtain valid consent under the General Data Protection Regulaton (GDPR) for the use of location data for profiling and targeted advertising.3 The CNIL gave the two French companies three months to change their practices to comply with EU data protection law. On October 3, 2018, the CNIL closed the matter against Teemo,4 as it considered that its updated practices now comply with the GDPR.5 The actions provide an indicator as to how Data Protection Authorities (DPAs) may approach enforcement under the GDPR.
Continue Reading France: CNIL Issues Formal Notices Against Two Marketing Platforms for Lack of Valid Consent for the Processing of Location Data

As application of the European Union’s (EU’s) General Data Protection Regulation (GDPR)1 quickly approaches, the enforcement authority of the European data protection authorities (DPAs) is rightfully on everyone’s mind. The power to issue monetary fines against non-compliant entities of up to four percent of the entity’s past year worldwide turnover is one of the GDPR’s most striking provisions.2 But, the GDPR also includes a provision that may prove to be equally important: giving individuals the right to bring collective legal action against non-compliant entities. If these collective actions become common, understanding by whom, under what grounds, and where these suits may be brought will be critical in assessing the importance of compliance and the benefits and risks of launching European data initiatives.
Continue Reading GDPR—Collective Actions Under the Privacy Banner

In yet another round of Schrems versus Facebook, on January 25, 2018, the Court of Justice of the European Union (CJEU) ruled that privacy activist Max Schrems is a consumer with regard to his Facebook…
Continue Reading Court of Justice Dismisses Privacy Class Action Against Facebook but Allows Max Schrems to Sue in Austria