Chapter 13: Cross-Border Data Transfers – Unlocking the EU General Data Protection Regulation

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White & Case LLPWhy does this topic matter to organisations?

In today's world, it is increasingly important to be able to move data freely to wherever those data are needed. However, the transfer of personal data to recipients outside the EEA is generally prohibited unless:

  • the jurisdiction in which the recipient is located is deemed to provide an adequate level of data protection;
  • the data exporter puts in place appropriate safeguards; or
  • a derogation or exemption applies.

Understanding the application of lawful data transfer mechanisms is essential for all organisations that wish to transfer personal data to recipients located outside the EEA (including processors, such as cloud service providers).

What types of organisations are most affected?

This issue affects all organisations that engage in Cross-Border Data Transfers. For example, organisations using online IT services, cloud-based services, remote access services or global HR databases—among others—will often need to implement lawful data transfer mechanisms.

What should organisations do to comply?

In order to ensure compliance with the requirements of the GDPR, organisations should:

  • review their existing and planned business operations;
  • identify all circumstances in which personal data are transferred to recipients located outside the EEA; and
  • ensure that, for each such transfer, the organisation has in place a data transfer mechanism that complies with the requirements of the GDPR.

To the extent that personal data are transferred from the EU to the US, organisations should keep a watchful eye on the progress of the EU-US Privacy Shield.

If an organisation identifies any data transfers for which it lacks a lawful data transfer mechanism, the organisation should review the available options and implement the most suitable mechanism promptly.  

Icons to convey information quickly

The following icons are used in the table, to clarify the impact of each change:

Under the GDPR, the position on this issue has materially changed (e.g., the GDPR has introduced a new obligation that did not previously exist).

Under the GDPR, the position on this issue has not materially changed (e.g., although the wording may be different in the GDPR, the nature of the relevant obligation is unchanged).

The impact of the GDPR on this issue is likely positive for most organisations (e.g., because the GDPR provides certainty in relation to a previously unclear issue).

The impact of the GDPR on this issue is likely neutral for most organisations (e.g., because the requirements under the GDPR and the Directive are essentially the same).

The impact of the GDPR on this issue is likely negative for most organisations (e.g., because the GDPR introduced a new obligation on organisations).

The impact of the GDPR on this issue is unknown at this stage (e.g., because the impact on organisations is dependent upon secondary guidance that has not yet been written).

 

Issue The Directive The GDPR Impact

General prohibition on transfers

Cross-Border Data Transfers are prohibited, unless certain conditions are met.

Rec.56-57; Art.25, Art.26(1)-(2)

Cross-Border Data Transfers were, without prejudice to compliance with national law, prohibited, unless the transfer was made to an Adequate Jurisdiction (see below) or the data exporter had implemented a lawful data transfer mechanism (or an exemption or derogation applied).

 Rec.101-116; Art.44, 45

Cross-Border Data Transfers may only take place if the transfer is made to an Adequate Jurisdiction (see below) or the data exporter has implemented a lawful data transfer mechanism (or an exemption or derogation applies).

 The GDPR and the Directive have essentially similar general restrictions on Cross-Border Data Transfers.

Commission Adequacy Decisions

Cross-Border Data Transfers to a recipient in a third country may take place, without a need to obtain any further authorisation, if the Commission has decided that such third country ensures an adequate level of data protection (an "Adequate Jurisdiction"). The basis for this principle is that such jurisdictions provide sufficient protection for the rights and freedoms of data subjects without the need for further safeguards.

The current list of Adequate Jurisdictions is: Andorra, Argentina, Canada (for organisations that are subject to Canada's PIPEDA law), Switzerland, the Faeroe Islands, Guernsey, Israel, Isle of Man, Jersey, New Zealand, and Uruguay. Following the decision in Schrems, the US-EU Safe Harbor is no longer deemed adequate. It has effectively been replaced by the EU-US Privacy Shield.

Rec.56-57; Art.25(1)-(6), 31(2)

Cross-Border Data Transfers to a recipient in a third country could take place if the third country ensured an adequate level of data protection. Adequacy was assessed in the light of all circumstances surrounding the transfer, in particular:

  • the nature of personal data;
  • the purpose and duration of processing;
  • country of origin and country of final destination;
  • the rule of law; and
  • professional rules and security measures.
The Commission could determine third countries to be Adequate Jurisdictions.

 Rec.103-107; Art.44, 45

Cross-Border Data Transfers to a recipient in a third country may take place if the third country receives an Adequacy Decision from the Commission. Factors that may affect an Adequacy Decision include, inter alia:

  • the rule of law and legal protections for human rights and fundamental freedoms;
  • access to transferred data by public authorities;
  • existence and effective functioning of DPAs; and
  • international commitments and other obligations in relation to the protection of personal data.

The Commission may declare third countries (or a territory, a specified sector, or an international organisation) to be Adequate Jurisdictions.

 Adequacy Decisions adopted by the Commission on the basis of the Directive remain in force until amended, replaced or repealed in accordance with the GDPR.

 The catalogue of adequacy requirements is substantially broader and more detailed under the GDPR. It is unclear whether further countries will qualify, and whether existing countries will maintain their status, as Adequate Jurisdictions.

Review of Adequacy Decisions

As illustrated by the Schrems decision, it is always possible that conditions in an Adequate Jurisdiction may change, and that jurisdiction may no longer provide adequate protection. Therefore, the Commission's Adequacy Decisions may need to be reviewed from time to time.

N/A

The Directive did not directly address the need to review Adequacy Decisions. The CJEU in Schrems determined that DPAs can examine claims that an Adequacy Decision provides insufficient protection for transferred personal data.

 Rec.106-107; Art.45(3)-(5), 93(2)-(3)

Adequacy Decisions are subject to a periodic review, at least every four years, taking into account all relevant developments. The Commission can repeal, amend or suspend Adequacy Decisions for jurisdictions no longer ensuring an adequate level of data protection (without retroactive effect).

 Adequacy Decisions made under the GDPR remain valid for a maximum of four years and may be amended, suspended or repealed. This may affect the ability of organisations to rely on Adequacy Decisions in the long-term.

Agreements between public authorities

Public sector Cross-Border Data Transfers may take place on the basis of agreements between a public authority in the EU and a public authority in a third country, without requiring a specific authorisation from a DPA.

N/A

The Directive did not specifically provide for binding agreements between public authorities or bodies as a lawful basis for Cross-Border Data Transfers.

 Rec.108; Art.46(2)(a), (3)(b)

Cross-Border Data Transfers between public authorities may take place on the basis of agreements between public authorities, which do not require any specific authorisation from a DPA. The public authorities must ensure compliance with GDPR requirements.

 Private organisations that are dealing with international regulatory investigations may benefit from the ability of national public authorities to lawfully transfer data between themselves on this basis.

 It is unclear how this instrument will develop in practice.

Binding Corporate Rules

Cross-Border Data Transfer within a corporate group may take place on the basis of Binding Corporate Rules ("BCRs"). The BCRs require approval from DPAs, but once such approval is obtained, individual transfers made under the BCRs do not require further approval.

Art.26(2)

The Directive did not specifically address BCRs. However, it permitted Member States to authorise data transfers where the controller has adduced adequate protections for the transferred data. BCRs being one such measure. Much of the guidance on the requirements for BCRs under the Directive comes from WP29 working papers (see, in particular, working papers 74, 107, 108, 133, 153, 154, 155, 195, 195a, 204 and 212) and from guidance issued by DPAs in certain Member States.

 Rec.108, 110; Art.4(20) 46(2)(b), 47; WP29 BCR Guidance (WP256, WP257)

The GDPR directly addresses the concept of BCRs. The competent DPA will approve BCRs as an appropriate mechanism for Cross-Border Data Transfers within a corporate group (including to members of that group that are established in third countries). If the BCRs meet the requirements set out in the GDPR, they will be approved, and no further DPA approval will be required for transfers of personal data made under the BCRs.

 Unlike the Directive, the GDPR explicitly recognises BCRs and provides clear provisions on requirements and procedures for BCRs. This is likely to make it easier for organisations to obtain DPA approval for, and implement, BCRs. The WP29 issued updated BCR guidance taking account of GDPR. This guidance provides assistance for BCR applicants in ensuring compliance with the requirements of GDPR.

Content of BCRs

Although the language of BCRs can be drafted by the parties, that language must cover certain specified topics, and satisfy the requirements of EU data protection law, before the BCRs can be approved by DPAs.

N/A

The Directive did not specify requirements for the content of BCRs. The WP29 working papers noted above set out guidance on the content of BCRs. Certain general principles (e.g., the requirement to make the BCRs binding upon the members of the relevant corporate group) applied uniformly in all Member States. However, a number of other requirements were interpreted inconsistently from one DPA to another.

 Rec.108, 110; Art.47(1)-(3); WP29 BCR Guidance (WP256, WP257)

BCRs must include a mechanism to make the BCRs legally binding on group companies. Among other things, the BCRs must:

  • specify the purposes of the transfer and affected categories of data;
  • reflect the requirements of the GDPR;
  • confirm that the EU- based data exporters accept liability on behalf of the entire group;
  • explain complaint procedures; and
  • provide mechanisms for ensuring compliance (e.g., audits).

 Unlike the Directive, the GDPR provides specific guidance on the list of criteria that BCRs must cover. By complying with this list, businesses can significantly increase the likelihood of obtaining DPA approval for their BCRs.

Approval of BCRs

Unlike Model Clauses (which are discussed below), the content of BCRs can be drafted to suit the needs and circumstances of the organisation (provided that they also satisfy the requirements of EU data protection law). Consequently (also unlike Model Clauses) BCRs are not deemed to be pre-approved. Instead, BCRs always require prior approval from DPAs.

N/A

The Directive did not discuss the requirements for approval of BCRs. A mutual recognition procedure applied in 21 Member States, and provided that the applicant must appoint a lead DPA to review the application for BCRs. Once the lead DPA approved the BCRs, that approval was recognised by those 21 Member States. However, for the remaining seven Member States, separate applications were required.

 Rec.108, 110; Art.47(1), 57(1)(s) WP29 BCR Guidance (WP256, WP257)

The competent DPA must approve BCRs that fulfil the criteria set out in the GDPR. Where the BCRs are intended to cover data transfers from multiple Member States, the Consistency Mechanism applies (see Chapter 15).

 The fact that approval must be given by the competent DPA for compliant BCRs is likely to make the adoption of BCRs easier and should significantly decrease the inconsistencies in the interpretation and implementation of BCRs from one DPA to another.

 Pre-existing approvals of BCRs created under the Directive remain valid until amended, replaced or repealed in accordance with the GDPR.

Model Clauses

Cross-Border Data Transfers may take place on the basis of standard data protection clauses approved by the Commission ("Model Clauses").

Rec.59-60; Art.26(2)-(4), 31(2)

Member States could authorise a Cross-Border Data Transfer where the controller adduced adequate safeguards in the form of Model Clauses. Under the Directive, several Member States required DPA notification or authorisation (or both) before Model Clauses could be used.

 Rec.81, 108-109; Art.28(6)-(8), 46(2)(c), 57(1)(j), (r), 93(2)

Cross-Border Data Transfers are permitted if the controller or processor adduces appropriate safeguards in the form of Model Clauses. These do not require any further authorisation from a DPA. The Commission may create new types of Model Clauses.

 DPA authorisation of transfers made under the Model Clauses is not required under the GDPR.

 Model Clauses implemented under the Directive remain valid until amended, replaced or repealed in accordance with the GDPR.

 The Commission may update or replace the existing Model Clauses. The impact of such updates remains to be seen.

DPA Clauses

Cross-Border Data Transfers may take place on the basis of standard data protection clauses adopted by one or more DPAs, in accordance with the GDPR ("DPA Clauses").

N/A

The Directive did not provide for DPA Clauses as an adequate safeguard for Cross-Border Data Transfers.

 Rec.108-109; Art.46(2)(d), 64(1)(d), 57(1)(j), (r), 93(2)

A Cross-Border Data Transfer may take place on the basis of DPA Clauses, which offer a national alternative to the Commission-approved Model Clauses. Transfers made on the basis of DPA Clauses do not require further DPA approval. DPA Clauses may be included in a wider contract (e.g., from one processor to another), provided the original wording of the authorised DPA Clauses is not contradicted (directly or indirectly).

 The GDPR introduces DPA Clauses, which allow DPAs to develop and offer DPA Clauses.

 Model Clauses are a well- known and proven concept; DPA Clauses might develop in a similar direction. However, it is unclear how this will work in practice. The Commission needs to approve DPA Clauses which, in theory, will prevent organisations from forum-shopping.

Codes of Conduct

A Cross-Border Data Transfer may take place on the basis of approved Codes of Conduct. Further commentary on Codes of Conduct is provided on Chapter 12.

Rec.61; Art.27

The Directive encouraged the drawing up of Codes of Conduct. However, it did not specifically permit Cross- Border Data Transfers to be made on the basis of a Code of Conduct.

 Rec.108; Art.40, 41, 46(2)(e)

A Cross-Border Data Transfer may take place on the basis of an approved Code of Conduct, together with binding and enforceable commitments to provide appropriate safeguards. Transfers made on this basis do not require DPA approval (although, as set out in Chapter 12, the Code of Conduct itself requires DPA approval).

 The GDPR introduces the possibility of Cross-Border Data Transfers made in reliance on approved Codes of Conduct. This permits organisations greater flexibility in selecting the data transfer mechanisms that best suit their needs.

Certification

A Cross-Border Data Transfer may take place on the basis of certifications. Further commentary on certifications is provided on Chapter 12.

N/A

The Directive did not provide for certifications as a mechanism for Cross-Border Data Transfers.

 Rec.108; Art.42, 43, 46(2)(f)

A Cross-Border Data Transfer may take place on the basis of certifications together with binding and enforceable commitments of the data importer to apply the certification to the transferred data. Transfers made on this basis do not require DPA approval (although, as set out in Chapter 12, the certification scheme itself requires DPA approval).

 The GDPR introduces certifications as a new lawful mechanism for Cross-Border Data Transfers. This permits organisations greater flexibility in selecting the data transfer mechanisms that best suit their needs.

Ad hoc clauses

A Cross-Border Data Transfer may take place on the basis of contracts negotiated between the data exporter and the data importer ("ad hoc clauses"), subject to approval from the competent DPA.

Rec.59-60; Art.26(2)-(3), 31(2)

A Cross-Border Data Transfer could take place on the basis of ad hoc clauses between the data exporter and data importer. These clauses had to conform to the requirements of the national laws of the relevant Member State, and required approval from the relevant DPA, before transfers could begin.

 Rec.108; Art.46(3)(a), (4), 63

A Cross-Border Data Transfer may take place on the basis of ad hoc clauses. These clauses must conform to the requirements of the GDPR, and must be approved by the relevant DPA subject to the Consistency Mechanism, before transfers can begin.

 The GDPR permits Cross-Border Data Transfers made on the basis of ad hoc clauses (as did the Directive).

 Pre-existing DPA approvals of ad hoc clauses remain valid until amended, replaced or repealed in accordance with the GDPR.

 DPAs are obliged to apply the Consistency Mechanism (see Chapter 15) which will, in theory, ensure a consistent regulatory approach across all Member States.

Administrative arrangements

A Cross-Border Data Transfer may take place on the basis of administrative arrangements made by the data exporter, subject to the authorisation from the competent DPA.

N/A

The Directive did not provide for administrative arrangements as a lawful basis for Cross-Border Data Transfers.

 Rec.108; Art.46(3)(b), (4), 63

Cross-Border Data Transfers may take place on the basis of administrative arrangements between public authorities (e.g., a Memorandum of Understanding), which include adequate protection for the rights of data subjects. Transfers made on this basis require DPA approval.

 Private organisations that are dealing with regulatory investigations may benefit from the ability of national public authorities to lawfully transfer data between themselves on this basis.

 It is unclear how this transfer mechanism will develop in practice.

Third country judgments and decisions

Third country court judgments, or administrative authority decisions, are recognised as a lawful basis for a Cross-Border Data Transfer only if the transfer is subject to appropriate international agreements.

N/A

The Directive did not directly mention third country court judgments or administrative authority decisions as a lawful data transfer mechanism.

 Rec.115; Art.48

A judgment from a third country, requiring a Cross- Border Data Transfer, only provides a lawful basis for such a transfer if the transfer is based on an appropriate international agreement, such as a Mutual Legal Assistance Treaty. However, this is without prejudice to other grounds for a transfer.

 This requirement may result in organisations being unable to comply with orders from courts in third countries (e.g., the US) without the existence of an appropriate international agreement. If no such agreement exists, the transfer may nevertheless be lawful if the conditions of Art.45, 46, 47 or 48 are met. However, it should be noted that the UK has effectively opted out of Art.48 of the GDPR, on the basis of Protocol 21 to the Treaty on European Union and the Treaty on the Functioning of the European Union.

Consent

A Cross-Border Data Transfer may be made on the basis of the consent of the data subject. Further commentary on consent is provided on Chapter 8.

Rec.58; Art.26(1)(a)

A Cross-Border Data Transfer could be made on the basis of the data subject's unambiguous consent. Any such transfers could only be carried out in full compliance with the applicable national laws that implemented the Directive.

 Rec.111; Art.49(1)(a), (3)

A Cross-Border Data Transfer may be made on the basis that the data subject, having been informed of the possible risks of such transfer, explicitly consents.

 The shift from "unambiguous" consent to "explicit" consent is unlikely to make very much practical difference for most organisations.

 The obligation to prove that data subjects have been informed of the possible risks associated with the transfer may impose a material administrative burden on organisations that rely on consent as a lawful basis for Cross-Border Data Transfers.

Contracts between a data subject and a controller

A Cross-Border Data Transfer may be made on the basis that it is necessary for the purposes of performing or implementing a contract between the data subject and the controller.

Rec.58; Art.26(1)(b)

A Cross-Border Data Transfer could take place if the transfer was necessary for:

  • the performance of a contract between the data subject and the controller; or
  • the implementation of pre contractual measures taken in response to the data subject's request.

 Rec.111 Art.49(1)(b), (3)

A Cross-Border Data Transfer may take place if the transfer is necessary for:

  • the performance of a contract between the data subject and the controller; or
  • the implementation of pre-contractual measures taken in response to the data subject's request.

 The position as it was under the Directive is essentially unchanged under the GDPR.

Contracts that are in the data subject's interest

A Cross-Border Data Transfer may be made on the basis that it is necessary for the purposes of performing or concluding a contract in the interests of the data subject (e.g., a parent making a purchase on behalf of a child).

Rec.58; Art.26(1)(c)

A Cross-Border Data Transfer could take place if the transfer was necessary for the conclusion or performance of a contract between the controller and a third party, which was in the interests of the data subject.

 Rec.111; Art.49(1)(c), (3)

A Cross-Border Data Transfer may take place if the transfer is necessary for the conclusion or performance of a contract between the controller and a third party, where it is in the interests of the data subject.

 The position as it was under the Directive is essentially unchanged under the GDPR.

Public interest

A Cross-Border Data Transfer may be made on the basis that the transfer is necessary for important reasons of public interest.

Rec.58; Art.26(1)(d)

A Cross-Border Data Transfer could take place if the transfer was necessary, or legally required, on important public interest grounds.

 Rec.111-112; Art.49(1)(d), (4)

A Cross-Border Data Transfer may take place if the transfer is necessary for important reasons of public interest. Such interests must be recognised in EU law or in the law of the Member State to which the controller is subject.

 The changes introduced by the GDPR make little practical difference, because interests that are not recognised by EU or Member State law are unlikely to be viewed by DPAs as a lawful basis for a Cross-Border Data Transfer.

Legal claims

A Cross-Border Data Transfer may be made on the basis that it is necessary for the purposes of legal proceedings, or obtaining legal advice.

Rec.58; Art.26(1)(d)

A Cross-Border Data Transfer could take place if the transfer was necessary, or legally required, on important public interest grounds for the establishment, exercise or defence of legal claims.

 Rec.111; Art.49(1)(e)

A Cross-Border Data Transfer may take place if the transfer is necessary for the establishment, exercise or defence of legal claims.

 The position as it was under the Directive is essentially unchanged under the GDPR.

Data subject's vital interests

A Cross-Border Data Transfer may be made on the basis that the transfer is necessary to protect the vital interests of the data subject.

Rec.58; Art.26(1)(e)

A Cross-Border Data Transfer could take place if the transfer was necessary in order to protect the vital interests of the data subject.

 Rec.111-112; Art.49(1)(f)

A Cross-Border Data Transfer may take place if the transfer is necessary in order to protect the vital interests of the data subject or of other persons, where the data subject is physically or legally incapable of giving consent.

 Extending the scope of this ground to cover third parties provides organisations with another lawful basis for Cross- Border Data Transfers, albeit in limited circumstances.

 In reality, very few organisations will ever make use of this basis for Cross- Border Data Transfers, as this basis only justifies transfers in a "life-or-death" situation.

Public registers

A Cross-Border Data Transfer may be made on the basis that the data to be transferred are taken from a public register.

Rec.58; Art.26(1)(f)

A Cross-Border Data Transfer could take place if the transferred data were taken from a register which was open to the public, or to any person who could demonstrate a legitimate interest in inspecting it.

 Rec.111; Art.49(1)(g), (2)

A Cross-Border Data Transfer may take place if the transferred data are taken from a register which is open to the public or, upon request, to any person who can demonstrate a legitimate interest in inspecting it. This does not permit a transfer of the entire register.

 The position as it was under the Directive is, for the most part, unchanged under the GDPR.

Controller's compelling legitimate interests

A Cross-Border Data Transfer may be made on the basis that the transfer is necessary for the purposes of a compelling legitimate interests of the controller. Further commentary on legitimate interests is provided in Chapter 7.

N/A

The Directive did not allow for Cross-Border Data Transfers to be made on the basis of the controller's legitimate interests.

 Rec.113; Art.49(1), (3), (6)

A Cross-Border Data Transfer may take place if:

  • none of the other lawful bases applies;
  • the transfer is not repetitive;
  • it only concerns a limited number of data subjects;
  • the transfer is necessary for the purposes of compelling legitimate interests pursued by the controller which are not overridden by those of the data subject; and
  • the controller has adduced suitable safeguards for the transferred data.

The controller must inform the relevant DPA and the data subjects about the transfer.

 The GDPR introduces the possibility that organisations may be able to make Cross- Border Data Transfers on the basis of compelling legitimate interests. Even if the scope of this transfer mechanism is narrow, it provides for another option to enable Cross-Border Data Transfers.

 It is unclear how this transfer mechanism will develop in practice.

Certain transfer mechanisms may be limited by law

A number of lawful mechanisms for Cross-Border Data Transfers may be limited, under applicable EU or Member State law, to certain categories of data.

N/A

The Directive did not provide for the possibility of limiting lawful data transfer mechanisms in this way.

 Rec.111; Art.49(5)

EU law or law of the Member States may, for important reasons of public interest, expressly limit Cross– Border Data Transfers relating to specific categories of personal data. Member States must notify such restrictions to the Commission.

 The fact that individual Member States can restrict the ability of organisations to transfer certain categories of personal data may severely hamper the business activities of some organisations, and result in inconsistent restrictions from one Member State to the next.

 

Commentary: GDPR Transfer Mechanisms

The GDPR maintains the pre- existing data transfer mechanisms created under the Directive (with some minor amendments). It also creates a number of new transfer mechanisms, of which organisations should be aware. Key changes from the Directive include the following:

  • Under the GDPR, several transfer mechanisms no longer require notification to, and/ or authorisation from, DPAs. This significantly reduces the administrative burden on organisations.
  • The GDPR introduces several new transfer mechanisms, including DPA Clauses, certifications and a derogation for the purposes of legitimate interests.
  • Transfer mechanisms such as BCRs and Codes of Conduct may become more important as a result of the increased harmonisation introduced by the GDPR.

However, there remains a significant amount of uncertainty in this area, including in relation to the EU-US Privacy Shield, which is likely to face both political and legal challenges.

Case law: Schrems vs. Data Protection commissioner

On 6 October 2014, the CJEU published its judgment in Schrems (Case C-362/14). The claimant objected to the transfer of his personal data from the EU to the US in reliance on Safe Harbor. The CJEU held that:

  • the Commission's Adequacy Decision concerning Safe Harbor was invalid, on the basis that Safe Harbor does not guarantee adequate protection for personal data that are transferred to the US; and
  • DPAs may examine whether the transfer of personal data to a third country (including Adequate Jurisdictions) complies with the requirements of the Directive and bring the matter before national courts, in order for the national courts to make a reference to the CJEU for a preliminary ruling for the purpose of examination of that decision's validity.

A challenge to the validity of Model Clauses was referred to the Irish Courts by the Irish DPA in May 2015, on similar grounds to the original challenge against the validity of Safe Harbor. It is widely anticipated that the case will be referred to the CJEU, and it remains to be seen what the outcome will be.

Commentary: The EU-US Privacy Shield

Following the decision in Schrems, the Commission and the US FTC formally agreed to the implementation of the EU-US Privacy Shield, which effectively replaces Safe Harbor. The final version of the deal features a number of amendments, mainly to address concerns raised by WP29 and the European Parliament. The most important changes include:

  • A requirement for companies to delete personal data that no longer serve the purpose for which they were collected.
  • A requirement that third party companies processing data on behalf of companies that have signed up to the Privacy Shield must guarantee the same level of protection as the Privacy Shield companies themselves.
  • Clarifications from the US government that bulk surveillance will be authorised only in exceptional circumstances, where targeted collection is not feasible, and will be accompanied by additional safeguards to minimise the volume of data collected and subsequent access to the collected data (such access to be targeted and only permitted for specific purposes).
  • Clarifications on the Ombudsperson Mechanism. In particular, the US Secretary of State will ensure that the Ombudsperson will have the means to ensure that its response to individual requests is based on all necessary information.

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  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

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