Privacy and Data Security Alert | November 2019

Shook, Hardy & Bacon L.L.P.

EU Court Allows Class Action to Proceed, Sets Precedent for Future Data Breach Class Actions

A class action brought against Google will be allowed to move forward after the plaintiff’s appeal was permitted, allowing him to continue his claim under section 13 of the Data Protection Act of 1998. The case stems from a workaround that enabled Google to place certain cookies on a user’s device without the user’s knowledge, allowing the company to secretly track users and collect “browser generated information.” The High Court of Justice held that potential members of the plaintiff’s proposed class did not have the “same interest” to “justify allowing the claim to proceed as a representative [class] action.” However, the Court of Appeal held that the browser generated information is “something of value” that was “taken by Google without [users’] consent during the same period, and are not seeking to rely on any personal circumstances affecting any individual claimant.” As such, the Court of Appeal held that the High Court abused its discretion in refusing to allow the case to proceed, and the lawsuit can continue.

On the heels of the Lloyd decision, the first data breach class action has been filed against Equifax in the U.K.’s High Court. The lawsuit seeks £100 million ($129.6 million) in damages for the approximately 15 million U.K. customers affected by the 2017 Equifax data breach. In September 2018, the U.K.’s Information Commissioner’s Office found that Equifax failed to implement certain safeguards and procedural protections of customers’ personal information and issued a fine.

TAKEAWAY

This key decision may serve as a basis for allowing data-breach-related class actions to gain traction in the EU, where data breach class actions have historically been unable to gain momentum.

CCPA Sees Amendments and Draft Regulations

California Attorney General Xavier Becerra has released a draft of the highly anticipated proposed regulations to the California Consumer Privacy Act (CCPA). The extensive regulations address numerous topics, such as expanded requirements for notices to consumers, requirements for handling and verifying consumer requests, and calculation of the value of consumer data for purposes of financial incentives. The attorney general’s office will accept public comments on the proposed regulations through December 6, 2019. The final regulations are not likely to go into effect before July 1, 2020. Additional information about the proposed regulations and their potential effects can be found in Shook’s webinar “The California Consumer Privacy Act: A Conversation on the Draft Regulations.” 

In addition, California Governor Gavin Newsom has signed seven bills amending or relating to the CCPA. The bills address issues such as modifying the definition of “personal information,” providing limited exemptions for the personal information of employees and business contacts, and correcting numerous drafting errors.

TAKEAWAY

The CCPA regulations could potentially lead to extensive additional compliance obligations, but they won’t be final until after the CCPA takes effect. Companies should prioritize baseline compliance for the January 1, 2010, effective date of the CCPA itself.

California Measure Proposes Tougher Privacy Rules for CCPA

Consumer privacy advocate and founding father of the CCPA Alastair Mactaggart has introduced a ballot initiative to strengthen and add to the CCPA. Under the many provisions of the 51-page initiative, entitled the “California Privacy Enforcement Act,” the proposed law would:

  • create new rights around the use and sale of sensitive personal information (e.g., health and financial information, racial or ethnic origin, and geolocation data);
  • provide enhanced protection for violations of children’s privacy;
  • require opt-in consent to collect data from consumers under the age of 16; and
  • establish a new state authority to protect these rights, the California Privacy Protection Agency, which will simultaneously enforce the law and provide necessary guidance to industry and consumers.

Approximately 623,000 signatures will be needed to place the initiative on the 2020 ballot in California.

TAKEAWAY

CCPA compliance is not a one-time event. The law will likely continue to develop and expand as advocacy groups continue to push for additional requirements. Companies will need to regularly re-evaluate their CCPA compliance program.

EU Court of Justice Rules on Cookie Compliance

In an important decision involving cookie-consent requirements, the Court of Justice of the European Union (CJEU) issued significant guidance about how consent may be obtained from consumers. The case involved an online-gaming company that prompted a user to enter certain information and included a preselected checkbox that gave permission to the company to install cookies on the user’s devices.

The court ultimately found that consent provisions of the ePrivacy Directive and EU GDPR require “some active behavior” from the user for consent to be valid, and it noted Recital 32 of the GDPR, which lists “ticking a box when visiting an internet website” as an example of obtaining valid consent from a user. The CJEU also confirmed that consent requirements under the ePrivacy Directive apply to all information stored or accessed from a device, whether or not it is considered personal data. Lastly, the CJEU held that a service provider must include the durations of cookies that will be installed on a user’s device and also detail if third parties will have access to the installed cookies.

TAKEAWAY

Companies operating in the EU can no longer offer preselected options for users in order to obtain consent for the use of cookies.

Data Protection Law Takes Effect in Cayman Islands

Coming into force on September 20, 2019, the Data Protection Law (DPL) is meant to align privacy law in the Cayman Islands with other major jurisdictions around the world, most notably the EU. Modeled after the GDPR, the DPL gives individuals a right of access to personal data, a right to request that a data controller stop processing their personal data for direct-marketing purposes, and rights in relation to automated decision-making. The Office of the Ombudsman issued guidance and will act as the supervisory authority for data protection. It will also look to interpretations and court decisions from the EU as persuasive authority.

TAKEAWAY

Companies operating in the Cayman Islands need to assess the applicability of the DPL. While it seems the ombudsman will apply EU law standards, there may be subtle differences that should be accounted for when developing a compliance program.

European Data Protection Board Adopts New Guidance on GDPR Issues

The European Data Protection Board (EDPB) met for two days in November to complete the annual review of the EU-US Privacy Shield and discuss various GDPR topics such as guidelines on territorial scope and data protection by design and default. Following a public comment period, the EDPB embraced the final version of its own Guidelines on Territorial Scope, which “aim to provide a common interpretation of the GDPR for EEA Data Protection Authorities when assessing whether a particular processing by a controller or a processor falls within the territorial scope of the legal framework.” Additionally, the EDPB adopted its own report regarding the efforts of U.S. authorities to implement the Privacy Shield and concluded that the U.S. Ombudsperson currently does not have the power to remedy noncompliance. Lastly, the EDPB initially approved guidelines regarding data protection by design and default that requires controllers to implement appropriate technical and organizational measures as well as safeguards to protect the rights and freedoms of data subjects. The guidelines will be submitted after a public comment period.

TAKEAWAY

Controllers and processors under the GDPR should carefully review the issued guidance to determine whether their processing activities are within the scope of the GDPR. Additionally, companies should evaluate whether their privacy programs need updates based on the guidelines on data protection by default and design.

HHS Fines Major Florida Healthcare Network

The Office for Civil Rights (OCR) has fined Jackson Health System (JHS) $2.15 million for myriad HIPAA violations including: failing to detect and stop an employee who stole and sold thousands of patient records; losing patient files without notifying OCR as required by law; and failing to properly secure protected health information (PHI) that was leaked to the media. OCR initiated an investigation and found that “JHS failed to provide timely and accurate breach notification to the Secretary of HHS, conduct enterprise-wide risk analyses, manage identified risks to a reasonable and appropriate level, regularly review information system activity records, and restrict authorization of its workforce members' access to patient ePHI to the minimum necessary to accomplish their job duties.”

TAKEAWAY

Always notify the proper authorities and individuals of a data breach within a timely manner and conduct periodic risk assessments to alleviate any identified risks. Applying data minimization principles can detour improper handling of customer data by unauthorized employees.

Irish Data Protection Commission Releases Guidance on Data Breach Notification Requirements under GDPR

Ireland’s Data Protection Commission (DPC) released practical advice for data controllers on how to handle data breaches and navigate the mandatory data-breach-notification regime of the GDPR. The guidance lists specific information that should be provided when notifying authorities of a breach and as well as several criteria for determining the risk to the rights and freedoms of affected data subjects, including the nature of the breach, the volume of personal data involved and the potential damage to data subjects. The guidance also encourages data controllers to utilize standard operating procedures so they can be prepared to handle a security incident.

TAKEAWAY

Companies in Ireland affected by a data breach should notify individuals and authorities within the proper time period and include all the detailed information listed in the DPC’s report. Establishing and maintaining internal policies and procedures for addressing a data breach are essential to timely responding to an incident.

EDPB Publishes Guidelines for Processing in Connection with Contracts

The European Data Protection Board (EDPB) has provided guidance on the processing of personal data necessary for the performance of a contract for online services under Article 6(1)(b) of the GDPR. Specifically, the guidelines address how the GDPR applies to processing for service improvement, fraud prevention, online behavioral advertising and personalization of content. Importantly, the guidance provides that merely referencing or mentioning data processing in a contract is not enough to bring the processing within Article 6(1)(b). Rather, determining the substance and fundamental objective of a contract is a prerequisite for determining whether data processing is necessary for its performance.

TAKEAWAY

Companies cannot simply rely on contractual language stating that processing is necessary to perform the contract. Only process personal data necessary to achieve the goals and objectives of the contract.

Sri Lanka Close to Enacting a New Privacy Law

The Sri Lankan Ministry of Digital Infrastructure and Information Technology (MDIIT) announced the final draft of its proposed data-protection bill. Similar to the GDPR and CCPA, the proposed legislation aims to regulate the processing of personal data by companies and strengthen the rights of data subjects. Under the bill, controllers would implement internal controls and procedures, appoint a data protection officer and perform privacy impact assessments prior to processing personal data that is “likely to result in a high risk to the rights and freedoms of data subjects.” The final draft also details that penalties shall not exceed a sum of ten million rupees (approximately $140,000) in any case. If certified, the law will be implemented in stages and take effect within three years from the date of certification.

TAKEAWAY

Companies with a presence in Sri Lanka should assess the impact of this law and developing privacy programs to successfully implement the law’s provisions.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

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Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

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  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • 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).
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  • "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.
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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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