- At Kemp Little, we are known for our ability to serve the very particular needs of a large but diverse technology client base. Our hands-on industry know-how makes us a good fit with many of the world's biggest technology and digital media businesses, yet means we are equally relevant to companies with a technology bias, in sectors such as professional services, financial services, retail, travel and healthcare.
- Kemp Little specialises in the technology and digital media sectors and provides a range of legal services that are crucial to fast-moving, innovative businesses.Our blend of sector awareness, technical excellence and responsiveness, means we are regularly ranked as a leading firm by directories such as Legal 500, Chambers and PLC Which Lawyer. Our practice areas cover a wide range of legal issues and advice.
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Privacy Shield: back to the drawing board?
Author: Shirine Corboy
On 3 February 2016 we reported that the European Commission announced that it and the United States had agreed on a new framework for transatlantic data flows to replace Safe Harbor – the EU-US Privacy Shield.
The Article 29 Working Party (‘WP29’) announced today that it has reviewed the documents setting out the EU-US Privacy Shield and has come to a common position.
As expected following leaked extracts of the WP29’s assessment of the Privacy Shield last week, the WP29 has concerns. The WP29’s Opinion released today expressed 3 main concerns with the Privacy Shield:
- the language used in the Privacy Shield does not oblige organisations to delete data if they are no longer necessary, which is an essential element of EU data protection law;
- the Privacy Shield does not exclude massive and indiscriminate bulk collection of personal data by the US authorities; and
- while the creation of an Ombudsperson is welcomed as a new redress mechanism, the WP29 expressed concerns that it is not sufficiently independent and does not have enough powers to guarantee a satisfactory remedy to protect individuals’ rights.
The WP29 also commented that:
- the Privacy Shield is lengthy and complex and needs to be clarified in a number of areas;
- it needs to be consistent with the EU data protection legal framework including, in future, the General Data Protection Regulation;
- the Privacy Shield did not reflect some key data protection principles as outlined in European law, so the Privacy Shield does not ensure an ‘essentially equivalent’ level of protection for individuals when personal data is processed under the Privacy Shield;
- it has concerns about protection for onwards transfers of personal data to third countries; and
- the new redress mechanisms might be too complex in practice, difficult for EU individuals to use and therefore ineffective.
The WP29 noted the major improvements of the Privacy Shield over the invalidated Safe Harbor for transfers of personal data to the US for processing, but there is still work to be done on the Privacy Shield to clarify and improve it. It urged the European Commission to improve the draft so that the protection offered by the Privacy Shield is equivalent to that of the European Union.
The WP29 said that negotiations between the US and the Commission are ongoing and that it would put itself at the disposal of each party to assist it.
In the meantime, the WP29 confirmed that, until the Commission takes its final decision on the Privacy Shield, binding corporate rules and model clauses are still valid means of transferring data to the US. It also confirmed that transferring personal data to the US under the invalidated Safe Harbor decision is illegal.
The next step is for the representatives of the Member States to express their opinion on the Privacy Shield. The Commission’s final decision is currently expected mid-June 2016, although there was a suggestion from the WP29 that this might happen later, possibly in September 2016.