Data Protection Law
In Data Protection Commissioner v Facebook Ireland and Maximillian Schrems (Case C-311/18) EU:C:2020:559, the European Court of Justice (ECJ) has given its preliminary ruling that Commission Decision 2010/87 on controller to processor standard contractual clauses (SCC) is valid but that Decision 2016/1250 on the adequacy of the protection provided by the EU-US Privacy Shield is invalid.
The General Data Protection Regulation ((EU) 2016/679) (GDPR) prohibits the transfer of personal data outside of the EU to a third country unless certain conditions are met. In principle, it may take place in any of the following circumstances:
- On the basis of a European Commission adequacy decision (Article 45, GDPR).
- Where there are appropriate safeguards in place, such as standard contractual clauses (SCCs) or Binding Corporate Rules (BCRs), and on the condition that data subjects have enforceable rights and effective legal remedies (Articles 46 and 47, GDPR).
- A derogation for a specific situation applies, such as the data subject has given their explicit consent (Article 49, GDPR).
EU-US Privacy Shield
The EU-US Privacy Shield is a framework constructed by the US Department of Commerce and the European Commission to enable transatlantic data protection exchanges for commercial purposes.
The EU-US Privacy Shield enables companies from the EU and the US to comply with data protection requirements when transferring personal data from the EU to the US. Approved by the European Commission on 12 July 2016, the EU-US Privacy Shield replaced the Safe Harbor Principles, which the ECJ declared were an invalid level of protection within the meaning of Article 25 of the Data Protection Directive in the October 2015 decision of Maximillian Schrems v Data Protection Commissioner (Case C-362/14)  EUECJ.
Schrems II Facts
In October 2015, Mr Maximillian Schrems, an Austrian lawyer and data privacy campaigner, successfully challenged the validity of the EU-US safe harbor arrangement as a legal basis for transferring personal data from Facebook Ireland to servers belonging to Facebook Inc located in the US (commonly referred to as the Schrems I judgment)
Subsequently, in July 2016, the European Commission adopted a replacement adequacy Decision 2016/1250 approving a new framework for EU-US personal data flows, the EU-US Privacy Shield.
Mr Schrems reformulated his complaint to the Irish Data Protection Commissioner, claiming that the US does not offer sufficient protection for personal data transferred to that country and sought the suspension or prohibition of future transfers of his personal data from the EU to the US, which Facebook Ireland now carries out in reliance on Decision 2010/87 on controller to processor SCCs.
One of Mr Schrems’ key concerns was that the US government might access and use EU individuals’ personal data contrary to rights guaranteed by the Charter of Fundamental Rights of the EU (Charter) and that EU individuals would have no remedy available to them once their personal data is transferred to the US. Under US law, internet service providers such as Facebook Inc can be required to provide information to various agencies such as the National Security Agency, the Central Intelligence Services and the Federal Bureau of Investigation and it can be further used in various surveillance initiatives such as PRISM and UPSTREAM.
Decision on controller to processor SCCs
The use of SCC’s remains valid but businesses using controller to processor SCCs (or planning to do so) now face additional burdens as they will need to conduct a Transfer Impact Assessment on whether, in the overall context of the transfer, there are appropriate safeguards in the third country for the personal data transferred out of the EU (practically speaking, the European Economic Area). EU data exporters will need to take into account not only the destination of the personal data but also, in particular, any access by public authorities and the availability of judicial redress for individuals, to ascertain whether SCCs are an appropriate mechanism and may need to put in place additional safeguards.
Decision on EU-US Privacy Shield
The limitations on the protection of personal data, transferred from the EU to the US, arising from US domestic law “on the access to and use by US public authorities, are not circumscribed in a way that satisfies requirements that are essentially equivalent to those required under EU law, by the principle of proportionality, in so far as the surveillance programmes based on those provisions are not limited to what is strictly necessary”.
As regards the requirement of judicial protection, the ECJ held that the Privacy Shield Ombudsperson does not provide individuals with any cause of action before a body which offers guarantees substantially equivalent to those required by EU law, so as to ensure the independence of the Ombudsperson and the existence of rules empowering the Ombudsperson to adopt decisions that are binding on US intelligence services.
EU-US Privacy Shield – Practical points:
- The EU-U.S. Privacy Shield is no longer valid and businesses solely relying on it to transfer personal data to the U.S. should rely on another transfer solution, including by putting SCCs in place.
- While SCCs remain valid, the underlying transfer must be assessed on a case-by-case basis to determine whether the personal data will be adequately protected (e.g. because of potential access by law enforcement or national security agencies). This is, in effect, a Transfer Impact Assessment. This will be burdensome for small organisations but also large ones making hundreds, if not thousands, of transfers.
- The EU Commission is now likely to issue updated SCCs. Those new clauses could bake in the Transfer Impact Assessment discussed above. While existing SCCs will hopefully be “grandfathered”, business should anticipate changes to their processes for new transfers.
- The judgment could have a negative impact on any adequacy finding for the UK after the Brexit transition period. While there are material differences between the U.S. and UK surveillance regimes, the judgement will no doubt make the EU Commission more cautious in future adequacy assessments.
- In the absence of an adequacy finding, transfers of personal data from the EU to the UK will be more difficult post-Brexit as EU businesses will necessarily have to consider the effect of UK government surveillance powers, in particular the Investigatory Powers Act 2016.
- While the data protection authorities cannot grant a “grace period” as such, they may well take a gradual approach to enforcing these new requirements. As an illustration, when the Safe Harbor was struck down in 2015, data protection authorities indicated they would not take active enforcement for a few months to allow controllers to make new arrangements.
More to come…
With the publishing of updated Standard Contractual Clauses expected and the UK Adequacy decision pending, businesses handling cross-border data transfers to and from the EU or to and from the US need to keep themselves informed of the latest developments. As it stands SCC’s will need to be part of such a cross-border transfer and a ‘Transfer Impact Assessment’ will be a be a new and additional obligation.