On July 16, 2020, the Court of Justice of the European Union (CJEU) published its decision in the matter of Data Protection Commissioner v. Facebook Ireland and Maximillian Schrems (“Schrems II”). The matter, arising from the transfer of Schrems’ personal data by Facebook Ireland to Facebook Inc. in the United States, presented questions
The GDPR – One Year and Counting
The GDPR is wrapping up its first year and moving full steam ahead. This principles-based regulation has had a global impact on organizations as well as individuals. While there continue to be many questions about its application and scope, anticipated European Data Protection Board guidance and Data Protection Authority enforcement activity should provide further clarity in the upcoming year. In the meantime, here are a few frequently asked questions – some reminders of key principles under the GDPR and others addressing challenges for implementation and what lies ahead.
Can US organizations be subject to the jurisdiction of the GDPR?
Whether a US organization is subject to the GDPR is a fact-based determination. Jurisdiction may apply where the US organization has human or technical resources located in the EU and processes EU personal data in the context of activities performed by those resources. In cases where the US organization does not have human or technical resources located in the EU, it may be subject to the GDPR’s jurisdiction in two instances: if the organization targets individuals in the EU (not businesses) by offering goods or services to them, regardless of whether payment is required, or if it monitors the behavior of individuals in the EU and uses that personal data for purposes such as profiling (e.g. website cookies, wearable devices). The GDPR may also apply indirectly to a US organization through a data processing agreement.
If we execute a data processing agreement, does that make our US organization subject to the GDPR?
When an organization subject to the GDPR engages a third party to process its EU data, the GDPR requires that the organization impose contractual obligations on the third party to implement certain GDPR-based safeguards. If you are not otherwise subject to the GDPR, executing a data processing agreement will not directly subject you to the GDPR. Instead, it will contractually obligate you to follow a limited, specific set of GDPR-based provisions. Your GDPR-based obligations will be indirect in that they are contractual in nature.
Does the GDPR apply only to the data of EU citizens?
No, the GDPR applies to the processing of the personal data of data subjects who are in the EU regardless of their nationality or residence.
Is our organization subject to the GDPR if EU individuals access our website and make purchases?
If your organization does not have human or technical resources in the EU, the mere accessibility of your website to EU visitors, alone, will not subject you to the GDPR. However, if your website is designed to target EU individuals (e.g. through features such as translation to local language, currency converters, local contact information, references to EU purchasers, or other accommodations for EU individuals) your activities may be viewed as targeting individuals in the EU and subject you to the GDPR.
Are we required to delete an individual’s personal data if they request it?
If your organization is subject to the GDPR, an individual may request that you delete their personal data. However, this is not an absolute right. Your organization is not required to delete the individual’s personal data if it is necessary
- for compliance with a legal obligation or the establishment, exercise or defense of a legal claim
- for reasons of public interest (e.g. public health, scientific, statistical or historical research purposes)
- to exercise the right of freedom of expression or information
- where there is a legal obligation to keep the data
- or where you have anonymized the data.
Additional consideration should be given to any response when the individual’s data is also contained in your back-ups.
GDPR principles have started to influence law in the U.S. In fact, many have been watching developments regarding the California Consumer Privacy Act (CCPA), which shares a right to delete as it pertains to the personal information of a California resident. Similar to the GDPR, it is not an absolute right and in certain cases an exception may apply. For instances, both law contain an exception from the right to have personal information deleted when the information is needed to comply with certain laws.
Does the GDPR apply to an EU citizen who works in the US?
If your organization is not subject to the GDPR and you hire an EU citizen to work in the US, the GDPR may not apply to the processing of their personal data in the US. However, depending on the circumstances, the answer may be different if the EU citizen is in the US on temporary assignment from an EU parent. In that scenario, their data may be subject to the GDPR if the US entity’s relationship with the parent creates an establishment in the EU, and it processes this data in the context of the activities of that establishment. To the extent the EU parent transfers the EU employee’s personal data from the EU to the US entity, that transfer may require EU-US Privacy Shield certification, the execution of binding corporate rules, or standard contractual clauses. These measures are designed to ensure data is protected when it is transferred to a country, such as the US, that is not deemed to have reasonable safeguards.
Do we need to obtain an EU individual’s consent every time we collect their personal data?
If your organization is subject to the GDPR and processes an EU individual’s information, you must have a “legal basis” to do so. Consent is just one legal basis. In addition to consent, two of the most commonly used legal basis are the “legitimate interests” of your organization and the performance of a contract with the individual. A legitimate interest is a business or operational need that is not outweighed by the individual’s rights (e.g. processing personal data for website security, conducting background checks, or coordinating travel arrangements). Processing necessary to the performance of a contract is activity that enables you to perform a contract entered into with the individual (e.g. processing employee data for payroll pursuant to the employment contract or processing consumer data for shipping goods under a purchase order.)
Should we obtain an employee’s consent to process their personal data?…
4 Resources That Make GDPR Compliance Less Painful
The deadline to comply with the GDPR’s complex and far ranging requirements is rapidly approaching. As your organization races to implement its compliance program before the May 25, 2018 effective date, questions and concerns are likely to arise. While there is no shortage of online guidance on the GDPR, finding answers to your specific questions…
An Employee’s Right of Erasure Under the GDPR
The implementation of the European Union’s General Data Protection Regulation (GDPR), with an effective date of May 25, 2018, is just around the corner, and with it will come pressure on the human resources (HR) department to update its approach to handling employee data. The GDPR significantly enhances employee rights in respect to control over…
U.S. Employers with EU Employees Gearing Up for GDPR
With the continuing parade of high profile data security breaches, the concern U.S. organizations have about the security of their systems and data has been steadily growing. And rightly so. Almost every organization processes (collects, uses, stores, or transmits) individually identifiable data. Much of this data is personal data, including employee data, which brings heightened…
Does the GDPR Apply to Your US-based Company?
If you’ve been following the headlines, you know that a day doesn’t pass without a reference to the “GDPR”. On May 25, 2018, the European Union (EU) General Data Protection Regulation (GDPR) will take effect, marking the most significant change to European data privacy and security in over 20 years. Most multinational companies, and of…
EU, U.S. Agree On Revisions To Privacy Shield
According to reports, the European Union and the United States have agreed on changes to the EU-U.S. Privacy Shield (Privacy Shield) which will be sent to the EU member states and the college of the 28 EU commissioners ultimately paving the way for final approval early next month. “We have agreed on the changes…
The Status of the EU-U.S. Privacy Shield
As we previously reported, the EU and U.S. reached agreement last week on the EU-U.S. Privacy Shield to replace the invalidated EU-U.S. Safe Harbor Program for transatlantic data transfers. While the announcement of the Privacy Shield is a relief to the thousands of companies who relied on the Safe Harbor Program, details remain unclear.…
New Safe Harbor Framework!
Compliance and privacy officials all over the U.S. just let out a breath they had been holding since last October when the European Court of Justice invalidated the US/EU Safe Harbor Program. BNA is reporting that negotiators just reached an agreement on a new data transfer framework between the U.S. and the European Union. Details…
Council of Europe Issues Major Ruling on Employee Monitoring
The European Court of Human Rights, a body of the Council of Europe, has issued a major court ruling on employee monitoring which deserves attention on this side of the pond and provides some guidance for companies with employees in Europe. Europe has generally taken a more protective stance than the U.S. when it comes…