Cyber Risk & Data Privacy

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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

On 5th October 2016, our IP & Technology team hosted a seminar on the new EU General Data Regulation (GDPR), which takes effect from 25 May 2018.  The Data Protection Commissioner, Helen Dixon, gave a keynote address at the event, which was followed by commentary from our IP and Technology Partners, John Whelan, John Cahir, Mark Rasdale and Claire Morrissey.

The GDPR introduces substantial changes to EU data protection law.  Companies have 19 months remaining in which to make preparations for the GDPR, but given its extra-territorial scope; new concepts such as accountability and privacy by design and…
Continue Reading A&L Goodbody Guide on the EU General Data Protection Regulation

On 13 September 2016, the Central Bank of Ireland (the CBI) published new guidance on IT risk management and cybersecurity for financial service firms. Publication of the Guidance follows the CBI’s previous actions in relation to cyber risks in the funds, insurance and banking sectors (see previous blog here). The CBI acknowledges that IT plays an integral part in the supply of financial services and calls on Boards and Senior Management of regulated firms to recognise the ever increasing incidences of cyber-attacks and business interruptions. It requests such firms to acknowledge their responsibilities in this regard and prioritise IT security. This responsibility involves establishing and maintaining a resilient IT strategy, while ensuring that it aligns with the firm’s general business strategy. It states that a robust oversight and engagement on IT matters at the Board and Senior Management level promotes an IT and security risk aware culture within the firm.
Continue Reading The Central Bank of Ireland publishes new Cross Industry Guidance on IT and Cybersecurity Risks

In Martin v Data Protection Commissioner [2016] IEHC 479, Mr Martin sought to challenge the Data Protection Commissioner’s (DPC) refusal to investigate disputed facts of his data protection complaint via an oral hearing. The High Court held that the DPC was not empowered to hold an oral hearing under the Data Protection Directive 95/46/EC or the Data Protection Acts 1988 and 2003 (the Acts), even where there is a conflict of evidence. Furthermore, the requirements of natural and constitutional justice do not confer an inherent power on the DPC to do so.

The decision confirms that it cannot be inferred from the Acts, which impose on the DPC a duty to investigate and make a decision in relation to a complaint, that the DPC has the power to conduct an oral hearing. Individuals do, however, have a right to appeal a decision of the DPC to the Circuit Court where an oral hearing can take place.Continue Reading High Court refuses oral hearing of complaint to Data Protection Commissioner

On 28 July 2016, the Court of Justice of the EU (CJEU), in VKI v Amazon EU Sárl (Case C-191/15), reconfirmed its earlier decision in Weltimmo (C-230/14) regarding the test for applicable law in relation to data processing activities.

The CJEU held that the processing of personal data by an undertaking engaged in electronic commerce is governed by the law of the Member State to which it directs its activities, if the undertaking carries out the data processing in question “in the context of the activities” of an establishment situated in that Member State.  It is for the national court to determine whether that is the case.  The fact that the undertaking does not have a branch or subsidiary in that Member State does not preclude it from having an establishment there.  The degree of stability of the arrangements and the effective exercise of activities in the Member State in question must be assessed. 

The CJEU also held that a standard term choosing a seller or supplier’s law as governing law is unfair within the meaning of the Unfair Consumer Contracts Directive (93/13/EEC).  As a result companies will need to consider whether their standard choice of law clauses in Business to Consumer contracts are unfair and therefore invalid. Continue Reading CJEU delivers judgment on applicable data protection law

The Advocate General has given his Opinion in a case concerning the interpretation to be given in a national context to the judgment of the Court of Justice of the EU (CJEU) in 2014 in Digital Rights Ireland (which found the EU Data Retention Directive to be invalid). The Advocate General found that an obligation to retain data imposed by a Member State on providers of electronic communication services may be compatible with EU law, subject to strict requirements.
Continue Reading Advocate General advises that obligation to retain data imposed by a Member State on electronic communications service providers may be compatible with EU law

The Article 29 Working Party (WP29) has issued a Press Release indicating it still has concerns about the Privacy Shield.  However it appears that the WP29 (consisting of representatives of the EU Data Protection Authorities) will refrain from challenging the Privacy Shield until after mid-2017. 
 Continue Reading Privacy Shield – Not likely to be challenged by EU DPAs for at least one year

Following the Brexit Referendum and the uncertainty now surrounding the future of data flows between the UK and the remaining EEA States, the UK Information Commissioner’s Office has published an update on its blog: “GDPR still relevant for the UK“. The update emphasises the importance of the GDPR to many organisations in the UK and notes:

“With so many businesses and services operating across borders, international consistency around data protection laws and rights is crucial both to businesses and organisations, and to consumers and citizens. The ICO’s role has always involved working closely with regulators in other countries…

Continue Reading ICO states that GDPR is still relevant for the UK

The US Second Circuit Court of Appeals, overturning an earlier court ruling from a lower court, has held that the US Government cannot compel Microsoft to hand over emails stored on a server in Dublin in a narcotics case. The decision is a milestone victory for privacy rights and will be greatly welcomed by US technology companies storing data abroad. It should also provide reassurance to European citizens that their data will be protected by European data protection laws and the US legal system will respect their privacy rights.Continue Reading Microsoft wins landmark US appeal against search warrant for emails stored in Ireland