International (UK): First-tier Tribunal dismisses Optical Express appeal on marketing texts

Although not local - take note of what consent means when you want to use Personal Information for Direct Marketing - the same principle/condition will apply in the RSA as well:

The First-tier Tribunal has upheld the Information Commissioner’s enforcement notice requiring Optical Express (Westfield) Limited (Optical Express) to stop sending unsolicited marketing texts, in contravention of section 22(2) of the Privacy Regulations 2003 (as amended), to individuals whose details were obtained under data supplier agreements.

Case: Optical Express used personal data provided by a number of suppliers, including Thomas Cook, to send text messages marketing its laser eye surgery. The Information Commissioner received 7506 complaints from individuals about this. Optical Express argued, among other things, that if their suppliers agreed in their contracts to only supply "consented data" that should be sufficient proof of consent. Brian Kennedy QC disagreed, " ... when consent was obtained by Thomas Cook or whomever, it was not stipulated (or at least it has not been shown to have been stipulated) that the personal data would be processed by OE. Neither was the marketing of specific types of products stipulated ... This falls under the "to guarantee fair processing" category. If the data subject doesn't know what other products might be marketed then how can he exercise his right to object to some of them whilst being happy to receive others?" In failing to obtain "proper, fully informed and specific consent", Optical Express had not met the requirements of regulation 22(2) 

Data Protection: How important is it to know what to do if there is a data breach?

Grupo Financiero Banorte, Mexico’s third largest bank, suffered a data breach earlier this year and is now reportedly being fined 32 million pesos ($1.98 million) by the Mexican data protection authority, the National Institute of Transparency, Access to Information and Protection of Personal Data, for failing to inform all of its clients immediately after the hack occurred.  Mexico’s National Banking and Securities Commission is also investigating the matter  and is expected to issue corrective measures.

To formulate and implement an effective incident response solution, including but not limited to an attorney and forensic experts on stand buy, contact Gerrie van Gaalen

Data protection - App Stores: selling goods without the necessary paperwork?

A group of 23 global data protection authorities has sent a letter to seven of the biggest appstore providers urging them to make the use of privacy policies mandatory for all apps using personal data sold via their platforms. 

The letter follows an enforcement sweep by 26 privacy enforcement authorities involved in the Global Privacy Enforcement Network (GPEN) in September 2014, which aimed to assess whether mobile app providers comply with data protection laws. Among other things, the results of the sweep indicated that 85% of the mobile app providers surveyed did not provide clear information on how the apps collect, process and disclose users' personal data.

The letter states that although app developers clearly have a responsibility to communicate their privacy practices to their users, mobile operating system developers and appstore providers also play a unique and integral role in users' interactions with apps they make available through their stores.

If you need a Mobile app privacy policy, then contact Gerrie van Gaalen

Russia Extends Deadline For Data Localization Law

Russian President Vladimir Putin approved a deadline of September 1, 2015, for companies to relocate their computer servers containing Russian citizens’ #personalinformation within the country’s borders.  The new timeframe for compliance with Russia’s data localization law was approved last month by both the upper house of Parliament and the Duma.  The Duma had previously passed a bill that would have moved the deadline up to January 1, 2015, over a year ahead of the law’s original effective date of September 1, 2016.  Lawmakers agreed to change the date after hearing from affected businesses concerned about the feasibility of setting up the necessary IT infrastructure in time to meet the law’s requirements.

© Copyright 2015 Steptoe & Johnson LLP

US: Boston Hospital Settles Data Breach Suit Over Unencrypted Laptop

Beth Israel Deaconess Medical Center in Boston has agreed to pay $100,000 to settle the Massachusetts Attorney General’s lawsuit over a 2012 data breach involving the theft of a physician’s unencrypted laptop.  In addition to the financial penalty, the hospital will also have to revise its data security measures to ensure compliance with state and federal law.  The consent agreement requires BIDMC to track and encrypt all hospital-purchased devices and to implement ActiveSync or other technology that prevents unencrypted smartphones and tablet devices from accessing personal information on the hospital’s email servers.  BIDMC must also review its policies and procedures regarding portable device security and train employees on how to handle personal and protected health information.  

© Copyright 2014 Steptoe & Johnson LLP. Steptoe & Johnson LLP 

How to avoid a similar risk at your organisation?

i) establish your current position against the applicable legislation

ii) determine realistic goals to achieve the recommended position in terms of data protection

iii) Implement appropriate deliverable, including but not limited to a Data Protection Policy, IT Security Policy, Mobile Device policy and BYOD policy

iv) Implement standard training and audit procedures at your oganisation.

Google in quandary over upholding EU ruling

Google and other Internet companies find themselves in a quandary over how to strike a balance between privacy and freedom of information as the top world search engine took a first step towards upholding an EU privacy ruling.

Google moved overnight to put up an online form that will allow European citizens to request that links to obsolete information be taken down – its first response to the ruling by Europe's top court on "the right to be forgotten".

The ruling on 13 May upheld a 1995 European law ondata protection and ordered Google to remove links to a 1998 newspaper article about the repossession of a Spanish man's home.

After putting up the online form in the early hours of Friday, Google received 12 000 requests across Europe, sometimes averaging 20 per minute, by late in the day, the company said.That puts Google and other Internet companies in the position of having to interpret the court's broad criteria for information that is "inadequate, irrelevant or no longer relevant" as well as developing criteria for distinguishing public figures from private individuals.

"The court's ruling requires Google to make difficult judgements about an individual's right to be forgotten and the public's right to know," a Google spokesman said.

Digital rights campaigners say the EU authorities need to agree on a common approach to guide the search engine companies.Next week representatives from the EU's 28 data protection authorities are due to discuss the implications of the ruling at a two-day meeting.

"Companies should not be tasked with balancing fundamental rights or making decisions on the appropriateness, lawfulness, or relevance of information they did not publish," said Raegan MacDonald, European policy manager at Access, a digital rights organisation.

By Reuters
Brussels, 2 Jun 2014

Definitely a discussion to follow in terms of privacy vs. freedom of information.  What are your thoughts on this?

US: Protection of Personal Information

HHS Announces Record HIPAA Settlement

New York-Presbyterian Hospital (NYP) and Columbia University have agreed to pay a combined $4.8 million – the largest HIPAA settlement ever involving a single incident – to settle charges that they violated the HIPAA Privacy and Security Rules by accidentally making the electronic protected health information of their patients accessible to Internet search engines.  The Department of Health and Human Services’ Office for Civil Rights (OCR) launched its investigations after the entities – which operate a shared data network and firewall – notified it of the breach.  As part of the settlement, NYP will pay $3.3 million, and Columbia will pay $1.5 million. The entities also agreed to undertake risk analyses, develop risk management plans, revise their existing policies and procedures, and provide training on privacy and security awareness. 

(c) Steptoe & Johnson LLP

EU: Search engine results to be removed where they affect privacy rights

ECJ confirms right to have search engine results removed where they affect privacy rights

The ECJ has ruled on three questions concerning the interpretation of the Data Protection Directive (1995/46/EC) with regard to the data processing activities of search engine providers, their status as data controllers and the existence and scope of a right to be forgotten, in a reference from a Spanish court. The proceedings had been brought by a Spanish citizen, who had asked that Google remove from the list of search results based on his name links to two announcements in a Spanish newspaper from 1998. The announcements concerned a real-estate auction connected with attachment proceedings prompted by the applicant's social security debts. The ECJ held that a search engine provider is the data controller in respect of the locating, indexing, storing and making available of information accessible on the internet, and that the applicant has a right to rectification, erasure or blocking of that information, and a right to object to the processing of the information in certain circumstances.

The ECJ made it clear that while the search engine's commercial interests in processing the information will not, as a rule, override the data subject's rights to privacy and data protection, a balancing of the data subject's fundamental rights and the interests of other internet users in accessing that information must be carried out. The interest in the continued accessibility of personal information may override the data subject's interest in cases where the data subject plays a prominent role in public life and the accessibility of the information is in the public interest. The ECJ further clarified that the data subject's right to request removal of the relevant links may also apply if the information is true and where its original publication was lawful. This is particularly the case where the information has since become inadequate, irrelevant or excessive.

The ECJ's decision has sent shock waves not only through the online industry but also through the loose collection of groups concerned with the protection of digital rights. While the strengthening of the EU's right to apply its data protection framework to non-EU data controllers in certain circumstances is broadly welcomed (within the EU, if not in the US, where many of the largest, most popular search engines are based), the importance that the court has afforded to the data subject's right to privacy, compared to the right of individuals to access to information, has led to accusations that the decision legitimises individual reputation management, the falsification of historical records and ultimately, censorship. (Google Spain SL and Google Inc. v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González, Case C-131/12, 13 May 2014.)

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