Revised Guidelines on the Territorial Scope of the GDPR and Local Representatives

Mintz - Privacy & Cybersecurity Viewpoints

Mintz - Privacy & Cybersecurity Viewpoints

The European Data Protection Board (EDPB) recently published an updated version of its guidelines on the territorial scope of the GDPR, which were initially issued just over a year ago.  The revised Guidelines do not significantly change the EDPB’s essential framework for determining whether or not the GDPR applies to a given data processing activity.  The revised Guidelines do provide a few additional (and reasonably useful) examples as well clarifying a few points that were a bit hazy in the original formulation of the EDPB’s framework.  But the most important change has to do with the potential liability of local representatives for GDPR violations by the controllers or processors that they represent.

Updates on how to determine whether or not the GDPR applies to your activities

The revised Guidelines adhere closely to the EDPB’s original formula for determining whether or not the GDPR applies in various situations.  However, the EDPB has tried to drill home the message that the jurisdictional analysis is activity-by-activity rather than entity-by-entity.  To recap, there are three main jurisdictional triggers for the GDPR:

1.  If a company is “established” in the European Union [1], the GDPR applies to all of its processing activities conducted in the context of its EU establishment regardless of where in the world the processing takes place and regardless of the geographic origin of the personal data.  “Establishment” covers both formal corporate entities, such as a company formed under the laws of and EU Member State, and informal but “stable” business arrangements in the EU, such as a continuous business presence via an on-the-ground sales agent. 

2.  If a company is not established in the EU, the GDPR will apply to its processing of personal data that is performed in the context of an offer of goods or services to people who are in the EU (whether offered for profit or free).

3.  If a company is not established in the EU, the GDPR will apply to its monitoring of the behavior of people who are in the EU. 

The revised Guidelines emphasize some key points for companies that are not established in the EU:

  • When determining whether an offer of goods or services is being made to people in the EU, the data protection authorities will look for evidence of intentional targeting of people in the EU.  Some relevant factors include whether the company advertises its goods or services specifically to people in the EU (including through geographically targeted online advertising), offers to ship goods to the EU, or takes payment in Euros or other EU currencies.
  • The data protection authorities will distinguish between “intentional” and “inadvertent” offers of services to people in the EU.  In a key example, if a non-EU company offers a service to someone when the person is outside the EU, and the company continues to provide the service when that person travels to the EU, the data protection authorities would consider that an inadvertent rather than intentional offer to someone in the EU, so the GDPR would not apply.
  • Monitoring the behavior of people in the EU most typically occurs in the online context, although other scenarios may also qualify as monitoring behavior, such as operating remote CCTV services or providing a health and fitness app.  It’s important to recall that under the GDPR and related e-privacy legislation, many indirect online identifiers and profiles qualify as personal data even when the individual’s name is not known.  However, the EDPB stresses that not all online data collection qualifies as “monitoring.”  Instead, it’s vital to consider what is done with the personal data.  Creating profiles for behavioral advertising or other purposes generally will quality as monitoring behavior.  But the revised Guidelines at least imply that if personal data are collected for other purposes such as determining the most popular content on a website, without profiling the users, that would not trigger the GDPR.  (That said, the e-Privacy Directive will nonetheless apply to the use of cookies and similar technologies.)
  • Processors both within and outside the EU face a couple of conundrums.  The revised Guidelines state that a processor that is located outside the EU and does not, on its own, do anything to trigger the application of the GDPR, will nonetheless be deemed to be caught by the GDPR if the controller for which it processes personal data is caught by the GDPR.  Effectively, the processor is brought under the GDPR’s jurisdiction solely by the controller’s activities.  This is new, and potentially very important for processors outside of the EU to consider when entering into contracts with customers.
  • Processors located within the EU that process personal data on behalf of controllers that are not established in the EU will need to comply with all relevant provisions of the GDPR.  Somewhat problematically, that includes the GDPR’s restrictions on transfers of personal data from the EU to countries outside of the EU (known as “third countries”).  The Guidelines do not provide any exceptions for personal data that originates from a controller that is not subject to the GDPR, is processed within the EU, and then is re-transferred to the controller – which means that the processor cannot re-transfer the personal data without meeting the GDPR’s requirements.  Since the current standard contractual clauses (the main data transfer mechanism for most countries) do not contemplate a processor acting as the “data exporter,” processors will be forced in most cases to rely on one of the Art. 49 “derogations” – which the EDPB has separately stated should be used only as a last resort and not for routine transfers.  Considering the GDPR and the EDPB’s guidance collectively, this puts EU-based processors at a competitive disadvantage vis-à-vis their non-EU competitors.

Local Representatives

Most companies whose activities fall under the GDPR on the basis of Art. 3(2) (offering goods/ services or monitoring behavior) are required to appoint a local representative.  Article 27 specifies that the representative must be established in one of the Member States where the relevant data subjects are located.  The main function of the representative is to serve as an EU-based contact point for data subjects and the data protection authorities.  The GDPR does not provide much detail about the role of the representative, but Art. 30 does specify the representatives must maintain a record of the data processing activities of the controllers or processors that they represent.  (That can be accomplished by providing the representative a copy of the records, or direct access to records maintained by the controller or processor.)  Controllers must include the name and contact information of their representative in the data protection notices required by Articles 13 and 14. 

One vexed question relating to representatives is whether they can be held liable for GDPR breaches by the companies they represent.  As we commented in a prior post on the original version of the Guidelines, even though the binding Articles of the GDPR did not specify that local representatives are vicariously liable for breaches by the entities they represent, the EDPB had construed the statement in Recital 80 that “[t]he designated representative should be subject to enforcement proceedings in the event of non-compliance by the controller or processor,” as meaning that representatives could be held liable for any breaches by the controller or processor that they represent, and that the full weight of the GDPR’s extensive fines can be brought to bear on the representative. That was an aggressive position to take on the basis of a recital to a regulation, given that recitals are not a binding part of the regulation (although recitals are, of course, very important in establishing legislative intent).  Unsurprisingly in light of the risk of massive fines under the GDPR, relatively few companies have entered the market to serve as local representatives. [2]

In the revised Guidelines, the EDPB appears to have backed off of its position on vicarious liability – although the updated language still as not as clear as one might wish.  The EDPB now states that:

it was the intention to enable supervisory authorities to initiate enforcement proceedings through the representative designated by the controllers or processors not established in the Union. This includes the possibility for supervisory authorities to address corrective measures or administrative fines and penalties imposed on the controller or processor not established in the Union to the representative . . . . The possibility to hold a representative directly liable is however limited to its direct obligations referred to in articles 30 and article 58(1) a of the GDPR (Guidelines v2.0, p. 28, emphasis added)

If “address[ing]” corrective actions and fines to the local representative simply means providing notice to the processor or controller via the local representative, then the legal exposure of local representatives becomes much more manageable, and we can hope that more services providers will enter the market at a reasonable price point to serve the demand of foreign controllers and processors – and thus improve foreign companies’ compliance with the GDPR.  Of course, the local representative remains liable for its own express obligations under the GDPR, specifically, cooperating with the data protection authorities and ensuring their access to the controller’s or processor’s data processing records.  We would expect local representatives to control these (now quite reasonably limited) risks via contracts with the companies that they represent.

[1] This post uses the terms “European Union” and “EU” for consistency with the terminology of the GDPR, but readers should recall that the GDPR also applies to the three additional EEA Member States, Norway, Iceland and Liechtenstein.  The United Kingdom has effectively adopted the GDPR into its national laws regardless of Brexit, via the UK’s Data Protection Act 2018, so the same rules will continue to apply to the UK.  However, after Brexit (but subject to the Withdrawal Agreement, if adopted), the UK will become a “third country” and UK companies may need to appoint local representatives in the EU (and vice versa).  It may become necessary for non-EU companies to appoint a local representative both in the EU and the UK. 

[2] Based on our periodic Internet searches to identify companies offering local representative services, versus our informal assessments of the potential demand from companies required by the GDPR to engage a local representative.

[View source.]

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.

© Mintz - Privacy & Cybersecurity Viewpoints | Attorney Advertising

Written by:

Mintz - Privacy & Cybersecurity Viewpoints

Mintz - Privacy & Cybersecurity Viewpoints on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

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 (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:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

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:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • 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

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 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 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 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

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:

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at (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
  • New Relic - For more information on New Relic cookies, please visit
  • Google Analytics - For more information on Google Analytics cookies, visit To opt-out of being tracked by Google Analytics across all websites visit 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 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:

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.