In honor of Data Privacy Day (Data Protection Day in Europe), the European Commission (“the Commission”) released a statement on the status of the EU’s General Data Protection Regulation (“GDPR”) which took effect on May 25, 2018. The joint statement by the Commission’s First Vice-President Timmermans, Vice-President Ansip, Commissioners Jourová and Gabriel stressed the importance of the GDPR in light of recent large-scale data breaches, and the positive effect the law has had in raising awareness on data protection and rights available to citizens.

The Commission noted that national Data Protection Authorities (DPAs) across the EU have received more than 95,000 complaints from citizens since May. Moreover, the DPAs have been active in guiding organizations, in particular small and mid-sized businesses, on their obligations under the GDPR. This will be bolstered by a “raising awareness” campaign soon-to-be launched by the Commission, to help organizations and individuals better understand their GDPR rights and requirements.

Although the GDPR is a regulation, not a directive, which makes it directly binding and applicable, there are still areas within the regulation that require EU member states to supplement the GDPR with local legislation. The Commission’s statement called on five EU member states that have not passed such legislation “to adapt their legal frameworks to the new EU-wide rules as soon as possible”. EU member states yet to enact GDPR implementation laws include, Bulgaria, Czech Republic, Greece, Portugal and Slovenia.

Together with the joint statement, the EU Commission released an info-graph, tracking GDPR developments over the past eight months. Key statistics include:

  • Most common types of complaints reported to the DPAs: telemarketing, • promotional emails and • video surveillance/CCTV.
  • 40,000 data breach notifications reported to DPAs across the EU.
  • 255 ongoing investigations by DPAs of cross-border GDPR violations.
  • Three fines issued by DPAs for GDPR violations– the largest fine issued was in the sum of €50,000,000 for lack of consent to processing personal data.

Investigations into potential infringements of the GDPR can be initiated by a Supervisory Authority or triggered by a data subject complaint. Sanctions for violations range from reprimands to fines. However, depending on the sensitivity of the data, the nature of the violation, the risk of harm to the data subjects, and the egregiousness of the violation, the fines can be significant. Fines, which are calculated based on the company’s global annual turnover of preceding financial year, can reach up to 4% or €20 million (whichever is greater) for non-compliance with the GDPR, and 2% or €10 million (whichever is greater) for less important infringements. In addition, the GDPR permits data subjects certain legal recourse for processing violations that affect their rights. These include the right to bring a private cause of action for material or non-material damages resulting from a violation or the right to pursue “collective actions,” which are similar to US class actions.

In other recent GDPR developments, in late 2018, the European Data Protection Board published draft Guidelines on the territorial scope of the GDPR (Article 3) for public consultation. Once finalized, this guidance will be particularly relevant for U.S.-based companies when assessing whether employee or customer data they process falls under the scope of the GDPR (See also Does the GDPR Apply to Your US-Based Company?). Most notably for non-EU data controllers and data processors, the guidelines address the processing of personal data in the context of offering goods or services to an individual in the EU, or the monitoring of their behavior in the EU, under Article 3(2). The Guidelines provide that individuals “targeted” in the EU includes “natural persons, whatever their nationality or place of residence.” In other words, the targeting criteria will apply regardless of the “citizenship, residence, or other type of legal status of the data subject” as long as the data subject is in the EU at the time of processing. With respect to the monitoring of a data subjects behavior in the EU, the Guidelines note the European Data Protection Board (EDPB) “considers that tracking through other types of network or technology involving personal data processing should also be taken into account in determining whether a processing activity amounts to a behavioral monitoring, for example, through wearable and other smart devices.” The public consultation period for the Guidelines ended January 18, 2019 and the final version should be instructive, particularly for non-EU organizations.

The GDPR has brought new and enhanced privacy and security obligations for organizations around the globe, including U.S.-based companies. Compliance with GDPR is not optional and as of December 2018, more than 50% of regulated organizations are still not fully GDPR compliant.

Below are some of our helpful GDPR resources:

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.