NHTSA Issues Voluntary Driverless Car Guidelines; European Privacy Supervisor proposes Digital Clearing House for coherent handling of Big Data cases; Facebook and Power Ventures Battle Over the Scope of the CFAA; Arizona Supreme Court: Police Cannot Search Unlocked, Unattended Phone; German consumer group urges Whatsapp to stop sharing data with Facebook; German DPA issues guidelines

Privacy law meets antitrust – EU Commissioner Vestager on data in competition law; ECJ to rule on admissibility of Privacy class actions; Northern District of California Sends Yelp Privacy Suit to the Jury; EU Advocate General finds EU-Canadian PNR pact unlawful; New York Unveils New Cyber Security Rules for Financial Services Organizations; New Jersey Senate Passes Shopping Privacy Bill; NIST Issues Mobile Threat Guidance

Privacy law meets antitrust – EU Commissioner Vestager on when privacy issues can lead to antitrust concerns

European Competition Commissioner Margarethe Vestager has commented on the relevance of privacy issues with regard to EU antitrust rules. According to Vestager, current investigations of the German Federal Cartel Office regarding Facebook’s “privacy issues” would “not necessarily” lead to competition law concerns, even though both fields of law might correlate under certain circumstances.

In the investigations at issue, the German Federal Cartel Office is alleging Facebook of abusing an alleged ‘dominant position’ in the market for social networks by imposing unfair conditions regarding the privacy settings for Facebook accounts on its users. The German antitrust regulator is arguing that users would have “no choice” whether to accept the conditions or to terminate their account, because there is no real alternative to the well-known social network. Under Article 102 of the Treaty on the Functioning of the European Union (‘TFEU’), “dominant companies are subject to special obligations. These include the use of adequate terms of service as far as these are relevant to the market.”

It still remains to be seen whether Facebook will ultimately be found in breach of EU antitrust rules relating to its Privacy Policy. On a more general matter, however, the Commissioner’s statements seem to confirm that indeed, companies controlling vast amounts of data may be considered able to prevent market entry by withholding this data from potential competitors who could not reproduce comparable datasets themselves and therefore might violate Article 102 TFEU. Companies that might fall in this category should therefore be prepared that not only privacy regulators, but also antitrust authorities might potentially be questioning them regarding their use of data in the future. Nevertheless, “simply holding a lot of data” would not be enough to raise antitrust suspicions, Vestager appeased.


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ICO investigating into Facebook and WhatsApp Data Sharing Plans; Germany and France publish joint action plan against encryption; PrivacyShield now covering 200 U.S. companies.

UK DPA investigating into Facebook and WhatsApp Data Sharing Plans

The United Kingdom’s Information Commissioner (‘ICO’) is taking a closer look into WhatsApp’s plan to share more user data with parent company Facebook for the purposes of targeted advertising.

According to a recent WhatsApp blog post, WhatsApp has changed its Privacy Policy on August 25. This move will allow the company to share further personal information, in particular the mobile phone numbers of its users, with parent company Facebook. According to information published earlier this week, users should have 30 days to decide whether they want to receive targeted advertising, but they should not be allowed to object the data sharing as such.

Actually, the new approach of WhatsApp is not such a big surprise, as similar concerns had already been raised in the debate around the acquisition of WhatsApp by Facebook. However, the European Commission had explicitly made clear that the assessment of privacy issues does not fall within its competence as a Competition authority, and approved the merger.


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First self-certifications accepted under Privacy Shield; EU Commission considers extension of telecommunication rules to apps.

U.S. Department of Commerce accepts first bunch of self-certifications under Privacy Shield

About 2 weeks after the announced start of the certification procedure under the “EU-U.S. Privacy Shield” (‘Privacy Shield’) on August 1, 2016, the U.S. Department of Commerce (‘DoC’) has officially granted certification status to a first set of approximately 40 U.S.-based multinational companies. According to a DoC spokesperson, “nearly 200 additional certifications” are still pending and hundreds more are expected in the next few weeks.

According to the publicly accessible Privacy Shield list, companies already approved under the new framework are predominantly major U.S. tech companies, such as i.a. Microsoft Corporation and Salesforce.

Companies which have not yet registered, but plan to do so, should consider signing up within the next 1 ½ months: for those submitting their certification until September 30, the DoC grants a grace period of 9 months from the date of certification to meet the necessary compliance requirements.


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EU Commission publishes first results of consultation of e-Privacy Directive; Irish DPA issues Guidance on Location Data.

European Commission publishes summary report on consultation of e-Privacy Directive

On August 4, 2016, the European Commission has published a first summary report on the public consultation on the evaluation and review of the e-Privacy Directive (Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), also known as ‘e-Privacy’ or ‘Cookie’ Directive.

Two weeks ago, on July 19, 2016, the Article 29 Working Party, an EU advisory body comprised by representatives of the national Data Protection Authorities, had also published a detailed opinion on this issue.

The ‘e-Privacy Directive’, which contains specific rules relating to the processing of personal data in the e-Communications sector, needs to be adapted to the new European General Data Protection Regulation (‘GDPR’), which will replace the former EU Directive 95/46/EC as from May 25, 2016. The GDPR aims to ensure modernized rules and increased harmonization for Privacy in Europe and is part of the European Commission’s Digital Single Market (DSM) Strategy.

The 421 stakeholders in the consultation, of whom more than ¼ are situated in Germany, agree with a vast majority of 83% that specific privacy rules for e-Communication are useful to ensure the confidentiality of communications. In addition, 76% of respondents believe that the Directive should as well apply to so-called ‘over-the-top’ service providers (OTT), when offering VoIP services or instant messaging. However, more than ¾ of the respondents also said that until now, the Directive has achieved its aims only to a limited extent, due to – among others – too little enforcement and compliance pressure.

The Commission’s conclusions drawn from the consultation, as well as proposals on how to adapt the Directive are expected to be released later this year.


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We are pleased to announce the publication of a report titled “Data Law Trends & Developments: E-Discovery, Privacy, Cyber-Security & Information Governance.” The report explores recent trends and anticipated future developments on critical issues related to the intersection of technology and the law, which affect a wide range of companies and industries. In addition, the report highlights key cases and issues to watch in 11 areas of data law, including: information governance, cybersecurity, social media, technology-assisted review, criminal law, regulatory, cooperation, privacy, cross border transfers, bring your own device (BYOD), and privilege.
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