The European Commission has today adopted the Privacy Shield.  The Privacy Shield is intended to provide a framework for EU-US data transfers.

What is the Privacy Shield?

European data protection law restricts the transfer of personal data outside the European Economic Area (EEA) unless the country to which the data is transferred ensures an adequate level of data protection. The Privacy Shield is a mechanism for overcoming this restriction and legitimising the transfer of personal data to some US companies.

Why do we need the Privacy Shield?

Until 6 October 2015, over 4,000 US companies relied on the Safe Harbour regime to legitimise the transfer of personal data to the US.  The Safe Harbour regime was declared invalid by the Court of Justice of the EU (CJEU) on 6 October 2015.  The Privacy Shield will replace the Safe Harbour regime.

After the CJEU’s ruling many US companies turned to the Model Contractual Clauses to legitimise their transatlantic data transfers.  The approval of the Privacy Shield will be welcomed by multinational companies, particularly as the Irish Data Protection Commissioner recently sought a referral to the CJEU to determine the legal status of data transfers under Model Contractual Clauses. However, Model Contractual Clauses remain a valid method of transatlantic transfer unless declared invalid by the CJEU, which may not be determined for up to another two years.Continue Reading European Commission Adopts Privacy Shield

On 8 July 2016, Member State representatives (the Article 31 Committee) approved the final version of the EU-U.S. Privacy Shield, to permit transatlantic transfers of personal data from the EU to the U.S.  The Privacy Shield will replace the invalid Safe Harbour Agreement, to ensure high standards of data protection for transatlantic transfers of data for commercial purposes. Continue Reading Member States approve Privacy Shield

Following its publication in the Official Journal of the European Union, the EU Trade Secrets Directive (2016/943)on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure will enter in to force on the 5 July 2016. Member States will have two years from this date to implement the provisions of the Directive into national law.Continue Reading Trade Secrets Directive- 5 July 2016

Under Section 26 of the Data Protection Acts 1988 and 2003, an appeal before the courts is provided for against a decision of the Data Protection Commissioner in relation to a complaint under Section 10(1)(a) of the Acts. The scope and applicable review standard for such an appeal was one of two key issues which came before the Supreme Court in the recent case of Nowak v. The Data Protection Commissioner (Judgment of O’Donnell J delivered on 28th April 2016).Continue Reading Nowak v. The Data Protection Commissioner: Data subjects’ right of appeal and testing the boundaries of “personal data”

The High Court in the UK has again endorsed the use of predictive coding, ruling it as being the most appropriate and proportionate approach to disclosure despite disagreement between the parties surrounding its use. In a previous blog, we outlined how the UK High Court in the Pyrrho case ruled that predictive coding was appropriate to discharge a parties obligations regarding electronic disclosure.

In the most recent judgment, (yet to be published), the concept of using predictive coding in a disclosure exercise was strongly contested. Berwin Leighton Paisner acting for the respondent note that the petitioner’s solicitors wished to adopt a “traditional” approach to document review, where the inboxes of an agreed a list of custodians would be filtered using an agreed list of search terms, and the responsive documents would be subject to a manual review.  It was put to the court that the costs of the traditional approach would be excessive, and that superior results could be achieved at a more proportionate cost using predictive coding.

Continue Reading UK High Court endorses Predictive Coding (Part II)

The European Council was yesterday due to adopt the directive on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure (“Trade Secrets Directive“), following a vote by the European Parliament on 15 April 2016.  This was following a long legislative process which began with a draft directive in 2013.
Continue Reading Can you keep a (trade) secret?

The European Commission has launched a public consultation on the current text of the ePrivacy Directive 2002/58/EC as well as the possible changes to the existing legal framework to make sure it is up to date with the new challenges of the digital age. The e-Privacy Directive sets out specific data protection rules for the electronic communications sector.


Interested parties, who wish to participate in the consultation process, have until 5 July 2016 to submit responses to the Commission’s online questionnaire.  The Commission will use the feedback from the consultation to prepare a new legislative proposal on ePrivacy, which is expected by the end of 2016. The type of legal instrument to be used in case of a revision may well follow the GDPR approach, taking the form of Regulation rather than a Directive, to avoid inconsistent application of the new rules at national level.Continue Reading Review of e-Privacy Directive

After four years of negotiation, the EU General Data Protection Regulation (GDPR) has finally been agreed.  It was given final approval by the European Parliament this morning, Thursday 14 April 2016.  The GDPR will replace existing EU and national data protection legislation.  Companies have a two year transitionary period to comply with the GDPR, which come into force in Spring 2018.

The Law Enforcement Data Protection Directive (LEPD Directive), which allows for smoother exchange of information between Member States’ police and judicial authorities, has also been approved.  It is aimed at improving co-operation in the fight against terrorism and other serious crime across the EU.  Continue Reading EU GDPR is finally agreed

The Article 29 Working Party (WP29) held a Press Conference today, Wednesday 13 April 2016, welcoming the improvements brought by the Privacy Shield compared to the Safe Harbour decision, but calling for further improvements to ensure the protection offered by the Shield is essentially equivalent to that offered in the EU. 

The WP29 has strong concerns, in particular, with regard to the possibility of bulk collection of personal data originating from the EU, and insufficient guarantees concerning the independence of the Ombudsperson.Continue Reading Article 29 Working Party demands improvements to Privacy Shield