Cyber Risk & Data Privacy

Introduction

Following the political agreement reached on the terms of the EU’s AI Act in December, the EU seems set to lead the way in adopting a novel regulatory framework to regulate the use and development of artificial intelligence (AI). Whilst the spotlight has largely focused on the AI Act, the EU’s AI regulatory framework will extend beyond just that piece of legislation. 

Back in September 2022, the EU Commission published a proposed package of additional regulatory measures to support the rollout of AI within Europe. This package comprised of:

  1. the proposed AI Liability Directive (AILD)
Continue Reading Beyond the AI Act: The AI Liability Directive & the Product Liability Directive

Following the first designation of Very Large Online Platforms (“VLOPS“) and Very Large Online Search Engines (“VLOSEs”) under the Digital Services Act Regulation (“DSA“) on 25 April 2023, the European Commission has now announced a call for evidence from stakeholders to inform proposed delegated acts on data access mechanisms.Continue Reading Commission Calls for Stakeholder Views on Data Access Mechanism under DSA

The European Commission has published its draft e-Privacy Regulation which, if adopted, will replace the existing e-Privacy Directive.  The Regulation broadens the scope of the Directive, enhances the confidentiality of communications, and simplifies the rules on cookies and unsolicited electronic marketing.

Scope

The Regulation expands the scope of the e-Privacy Directive, which only applies to traditional telecoms providers.  It is proposed that the Regulation will apply to any business that provides any form of online communication service, so all internet based voice and messaging services, will be subject to the new rules.  The Regulation calls these providers “over-the-top communications service providers”. So Skype, WhatsApp, Facebook Messenger, Gmail, Viber and so forth, will all come within the Regulation’s remit. This will ensure that these services guarantee the same level of confidentiality of communications as traditional telecoms operators.

Continue Reading The e-Privacy Regulation – What’s new?

January 28th was European Data Protection Day and we marked the event by attending the 9th Annual Data Protection Conference which was held in the Aviva Conference Centre.

The two-day conference featured interactive workshops on the first day on ‘Privacy by Design’ and ‘Conducting a Data Protection Audit’. The second day included a line-up of notable speakers who spoke on topics related to the theme of the conference; “GDPR – It’s here, what’s next”. Dara Murphy, Minister of State for European Affairs, EU Digital Single Market and Data Protection spoke about his department’s work in preparing for GDPR and the importance of having a strong, well-resourced Office of the Data Protection Commissioner (ODPC). The Minister also announced plans for a data summit in June this year.

A&L Goodbody’s Claire Morrissey presented on “Legal Aspects of the GDPR” and took part in a lively Q&A session. Claire highlighted some of the key changes that the GDPR will bring including the need to demonstrate compliance, the new right of data portability, the new security reporting obligations and the ability for individuals to recover financial and non-financial loss (such as damages for distress or embarrassment in the event of inadvertent disclosure of personal data). She also offered some practical tips for ways in which businesses can prepare for the GDPR (some of which are available here).Continue Reading 9th Annual Data Protection Conference

The Office of the Data Protection Commissioner (the ODPC) has released a guidance note on connected toys (the Guidance Note). The Guidance Note highlights the possible data protection issues that might occur when children and parents use toys with microphones and cameras that have an ability to connect to the internet.

The ODPC warns of certain potential issues with the personification of connected toys, in particular dolls. Some of these toys provide an interactive experience by reacting to selected words. This may give the impression of an emotional response to what the child says or does. In some instances, these toys are enabled to collect and record these “conversations” between the child and the connected toy on apps, smartphones or tablets. The ODPC cautions that some of these connected toys’ terms and conditions allow these potentially sensitive recordings to be shared with other companies and used for the basis of targeted advertising.Continue Reading Child’s Play: The Office of the Data Protection Commissioner releases Guidance Note on Connected Toys

The Article 29 Working Party (WP29) has released its Action Plan for 2017, setting out its priorities and objectives in the context of implementation of the EU GDPR for the year ahead. It has committed to finalize its work on topics undertaken in 2016 including guidelines on:

  • Certification;
  • Processing likely to result in a high risk & Data Protection Impact Assessments (DPIAs);
  • Administrative fines;
  • Setting up the European Data Protection Board (EDPB) structure;
  • Preparation of the one stop shop, and
  • The EDPB consistency mechanism.

The WP29 also intends to start work in 2017 on guidelines on:

  • Consent;
  • Profiling,


Continue Reading WP29 Action Plan for 2017

The Article 29 Working Party has issued a press release and three sets of guidelines and FAQs on implementation of some key issues under the GDPR:

It welcomes any comments from stakeholders on the guidelines until end January 2017. Guidelines on Data Privacy Impact Assessments and Certification are promised for 2017.

The guidance provides some interesting insights and should help organisations to comply with their new obligations under the GDPR.  The guidelines on the Lead Supervisory Authority highlight that there will be more than one lead supervisory authority, where a company carries out several cross-border activities and the decisions on the means and purposes of processing are taken in different establishments. This means that companies will have to consider organising decision-making powers in respect of personal data processing activities in a single location, in order to avail of the “one-stop shop” mechanism.
Continue Reading GDPR guidance on Data Portability, DPOs & Lead Supervisory Authority

The ODPC has published guidance, The GDPR and You – Preparing for 2018, to help organisations prepare for the GDPR. It contains a checklist to provide companies with a practical starting point to ensure full compliance by May 2018. It is important for organisations to start taking steps to prepare now, to ensure that adequate policies and procedures are in place to deal with the new rules when they come into force.  Organisations will face hefty fines for non-compliance, and the risk of individuals bringing private claims for breach of their data privacy rights.

The Article 29 Working Party
Continue Reading ODPC publishes guidance on the GDPR

On 19 October 2016, the CJEU ruled, in Breyer v Bundesrepublik Deutschland (Case C-582/14), that dynamic IP addresses may constitute “personal data” under the Data Protection Directive, where a website operator has the legal means of identifying the visitor by use of additional information held about him/her by the ISP.  The decision confirms the stance taken by the Scarlet Extended (Case C-70/10) (at para. 51), where the CJEU essentially held that IP addresses are “personal data” because they allow those users to be precisely identified. However, that finding by the CJEU related to the situation in which the collection and identification of the IP addresses of internet users is carried out by ISPs.
Continue Reading CJEU rules IP addresses may constitute personal data