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Data transfers: Investigations begin after Schrems II ruling

The Schrems II ruling raised a big fuss in the summer of 2020: with the invalidation of the Privacy Shield, companies are now required to carry out a detailed assessment to verify the adequacy of the legal regime of the states to which they transfer processed personal data, compared to the guarantees offered by the GDPR. This position was first affirmed by the CJEU and then confirmed by the European Data Protection Board. The data transfer assessment is legally and technically complex, but necessary, and only few – virtuous – companies have implemented a methodology to handle such requirement. In the meantime, the first investigations by the Data Protection Authorities have started, will EU companies be ready?

1. The effect of the Schrems II judgment

The Schrems II ruling by the Court of Justice of the European Union (CJEU), issued on July 16, 2020, invalidated the EU-US Privacy Shield and created new obligations, particularly for companies transferring personal data under standard contractual clauses (SCCs). On November 10, 2020, the European Data Protection Board (EDPB) published recommendations on steps companies can take to supplement transfer instruments, such as SCCs, to ensure compliance with EU data protection law. These recommendations established strict criteria for the use of standard contractual clauses as an alternative mechanism for transferring data outside the European Economic Area, requiring companies to make a case-by-case assessment of the appropriateness of such a transfer.

2. New standard contract clauses will not be enough

On November 12, 2020, the European Commission published a draft implementing decision on standard contractual clauses for the transfer of personal data to third countries under the GDPR, making public the draft set of new standard contractual clauses (the “SCCs”). The draft standard contractual clauses will govern transfers of personal data outside the European Economic Area (EEA) to replace the current SCCs, taking into account changes introduced not only through the GDPR but also by the Schrems II ruling, and to better reflect the widespread use of new and more complex processing operations that often involve multiple data importers and exporters. Subsequently, in January 2021, the European Data Protection Board (EDPB) and the European Data Protection Supervisor (EDPS) published a joint opinion on the new standard contract clauses. EDPB and EDPS have welcomed the new SCCs, but have asked for several changes to be adopted. Apparently, the requested changes are numerous and relate to, among other things, the so-called “docking clause” that allows additional parties to join the SCCs and the obligations of data controllers. In addition, the EDPB and EDPS suggest that the annexes to the SCCs clarify as much as possible the roles and responsibilities of each party with respect to each processing activity, because any ambiguity would make it more difficult for controllers or processors to fulfill their obligations under the accountability principle.

The new SCCs do not resolve the issues regarding data transfers outside the EEA generated by the Schrems II ruling. In fact, both the EDPB and EDPS indicate that, with respect to specific transfers of personal data to third countries, the additional measures outlined in the EDPB’s recommendations may be necessary. Therefore it remains essential to perform a transfer impact assessment in relation to any transfer of personal data outside the EEA as reiterated by the EDPB and CJEU.

3. Data Protection Authorities investigations have started

The Swedish Data Protection Authority has issued a sanction under the GDPR for failing to adequately protect sensitive data stored on a U.S. cloud platform following the Schrems II ruling. Specifically, the authority found that Umeå University had processed special categories of personal data relating to sexual life and health through, among others, storage in a cloud service of a U.S. provider, without sufficiently protecting the data.

The decision is relevant because the Swedish authority refers to the Schrems II judgment, arguing that a data transfer to the United States is in itself likely to trigger a high risk to personal data because data subjects are subject to limited safeguards with respect to the protection of their personal data and the exercise of their privacy rights.

Most recently, the Hamburg Data Protection Authority sent out a questionnaire to German organizations with reference to personal data transfers while using Microsoft Office 365. Specifically, the authority is asking companies to disclose details about how they handle data transfers in light of the Schrems II decision, including specific reference to the legal basis for transfers and the use of standard contractual clauses.

It seems clear that there is a strong probability that also the Italian Garante will begin very shortly to ask for evidence of the evaluations on the adequacy of transfers carried out under the Schrems II Judgment and the Recommendations of the European Data Protection Board.

4. A quick solution to assess the data transfer adequacy

In quick response to the Schrems 2 decision, our global data protection team created a pioneering data transfer assessment methodology implemented through a legal tech tool, known as Transfer, which was launched to the market on 28 July 2020.

Transfer helps data exporters and importers to logically assess the safeguards available when transferring data to particular third countries and whether they are adequate.  It includes a five step assessment process, comprising a scoring matrix and weighted assessment criteria to help manage efficient decision making.  The process is facilitated by an interactive LegalTech tool which automates risk scoring and assists in reaching a justifiable decision on how to proceed with a proposed data transfer.

The output is an assessment consistent with the judgment when relying on SCCs or other transfer mechanisms, which is designed to provide an auditable report in line with the GDPR’s accountability principle.

If you wish to know more about Transfer, schedule a demo and learn how to automatize Data Transfer Assessments limiting the risk of sanction, contact me/.

Image courtesy by Lelia Adolphsen


𝗦𝗰𝗵𝗿𝗲𝗺𝘀 𝗜𝗜 𝗶𝗺𝗽𝗹𝗶𝗰𝗮𝘁𝗶𝗼𝗻𝘀 𝗲𝗮𝘀𝗶𝗹𝘆 𝗲𝘅𝗽𝗹𝗮𝗶𝗻𝗲𝗱: summary flowchart

In last week pills I shared the full Schrems II decision which invalidates the #PrivacyShield

The judgment has important implications for companies transferring data outside the EU, and potentially on service contracts with non-EU suppliers, in particular contracts for the provision of IT services which provide for the possibility for suppliers’ staff outside Europe to access the data, even if hosted in databases within the European territory.

However, as many struggle to districate within the 63 pages of the CJEU decision to identify what are the actual consequences for their contracts and what happens to the Standard contractual clauses (SCC) which they have in place, here’s a synthetic #flowchart which answers some of the Key FAQs on Scherms II implications.

Shoot me a message for the pdf file

This is just an example of how legal concepts can be made easy, and, as always, make sure to consult your legal advisor to have the full picture.
You can access the full Supervisory Authority FAQs which I used as source here.

We have already been kept really busy this week, and another hot topic we tackled is whether access from foreign personnel to EU databases constitutes a data transfer.

To help organizations identify and manage the privacy risks associated with the transfer of personal data regulated by GDPR to third countries that do not benefit from an adequacy decision by the European Commission, the law firm which I work with has developed an ad-hoc methodology, aligned with the requirements of European legislation following the Schrems II judgment. The methodology provides a basis for exporters and importers of data to assess safeguard measures, taking into account a number of factors, in order to calculate the level of risk of each transfer, and to provide an accurate, consistent, verifiable and defensible basis to support a case-by-case decision to proceed or continue a given transfer. Contact me if you wish to know more.

Get ready to negotiate with your non-EU counter-parties.

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Privacy Shield cracked

Today, 16 July 2020, following the complaint issued by Maximillian Schrems regarding Facebook personal data transfer from EU to US, and the judicial follow-up, the EU Court of Justice issued a decision invalidating the Privacy Shield. Such data transfer mechanism was put in place provide companies on both sides of the Atlantic with a way to comply with data protection requirements when transferring personal data from the European Union and Switzerland to the United States in support of transatlantic commerce.

However the previous Commission decision ( Decision 2016/1250) which enabled such mechanism, was declared not more valid by the EU CURIA.

Why the Shield was cracked

According to the Court:

  • requirements laid down for personal data transfers purposes by the GDPR concerning appropriate safeguards, enforceable rights and effective legal remedies must be interpreted as meaning that data subjects whose personal data are transferred to a third country pursuant to standard data protection clauses must be afforded a level of protection essentially equivalent to that guaranteed within the EU by the GDPR;
  • the assessment of that level of protection must take into consideration both the contractual clauses agreed between the data exporter established in the EU and the recipient of the transfer established in the third country concerned and, as regards any access by the public authorities of that third country to the data transferred, the relevant aspects of the legal system of that third country;
  • in this respect the Court noted that the limitations on the protection of personal data arising from the domestic law of the United States on the access and use by US public authorities of such data transferred from the European Union to that third country, which the Commission assessed in Decision 2016/1250, are not circumscribed in a way that satisfies requirements that are essentially equivalent to those required under EU law, by the principle of proportionality, in so far as the surveillance programmes based on those provisions are not limited to what is strictly necessary

Standard contractual clauses are still valid?

The Court examined also the validity of Decision 2010/87 establishing the Standard Contractual Clauses, an alternative safeguard for enabling third country data transfers.

The validity of SCCs, according to the Court, depends on whether it can be adopted an effective mechanisms that make it possible, in practice, to ensure compliance with the level of protection required by EU law and that transfers of personal data pursuant to such clauses are suspended or prohibited in the event of the breach of such clauses or it being impossible to honour them.

The Court points out, in particular, that that decision imposes an obligation on a data exporter and the recipient of the data to verify, prior to any transfer, whether that level of protection is respected in the third country concerned and that the decision requires the recipient to inform the data exporter of any inability to comply with the standard data protection clauses, the latter then being, in turn, obliged to suspend the transfer of data and/or to terminate the contract with the former

What can Supervisory Authorites do now

The decision stresses that competent supervisory authorities are required to suspend or prohibit a transfer of personal data to a third country where they take the view, in the light of all the circumstances of that transfer, that the standard data protection clauses are not or cannot be complied with in that country and that the protection of the data transferred that is required by EU law cannot be ensured by other means, where the data exporter established in the EU has not itself suspended or put an end to such a transfer.

What can you do?

If your company – directly or via its outsourcers – transfers personal data to the US, there are different options to be considered:firstly considering alternative appropriate safeguards under Article 46 of the GDPR to guarantee a safe data transfer, secondly reviewing your Data Processing Agreements with processors who happen to transfer data in the States, and thirdly reviewing the content of your privacy notices to align them with your new structure, and eventually consider moving some services within the EU.

For more info on HOW TO ADAPT DATA TRANSFERS AFTER PRIVACY SHIELD INVALIDATION drop me a line via Twitter –  Fb or Telegram  

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Email sent to wrong recipient? Avoid getting fined

Sending an email to the wrong recipient can trigger privacy risks, and even sanctions, especially if the email contained attachments or other content with personal data. Here’s a brief analysis on how to limit the risk of sanctions and avoid getting fined in case of an email sent to the wrong recipient.

Recent cases

On 21.05.2020 the Data Protection Supervisory Authority of Romania (ANSPDCP) finalized an investigation with an energy operator who accidentally send an email containing personal data of a customer to the wrong recipient and found that it violated the provisions of art. 32 of the GDPR, regarding the security of the processing.

The operator was sanctioned with a fine of 19368.4 lei, the equivalent of 4,000 EURO.

The investigation was initiated as a result of a complaint issued by a customer who was informed of the violation of security and confidentiality of his personal data, by the data controller. The company accidentally transmitted, via email, the personal data of a client (name and surname, address, e-mail address, client code and eneltel code) to another client, who was not entitled to receive such information.

During the investigation, the National Supervisory Authority found that the operator did not take sufficient security and confidentiality measures to prevent accidental disclosure of personal data to unauthorized persons , violating the provisions of art. 32 of the GDPR.

The operator was therefore sanctioned because it did not implement adequate technical and organizational measures in order to ensure a level of security corresponding to the risk of the processing generated especially, by the unauthorized disclosure or the unauthorized access to personal data.

At the same time, the corrective measure was applied to the operator Enel Energie Muntenia SA, according to the provisions of art. 58 paragraph (2) i) of the GDPR.

Thus, the operator was obliged to implement the appropriate and adequate security measures, both technical and organizational, within 30 working days of the communication.

Prevention & Remediation measures

Sending an email to the wrong recipient is one of the most recurring case of databreach, hence chances are it may happen to you too. So here’s a list of suggestions regarding safeguards to prevent the error, and try to limit its risks in case it happens.

1: Technical security measures

  • Recall the email: yes, in theory you can do that if you instantly become aware of the mistake, however based on the timing of the discovery and conditions and procedures of the different email service providers, you may actually not be able to avoid your message getting – wrongfully- delivered. In case you wish to give it a try, here’s a how-to guide. PROS: easy, generally free CONS: might not be effective
  • Adopt a data loss prevention software. Seriously, do it. Although not specifically aimed at preventing material errors by the sender, a Data loss prevention software detects potential data breaches/data ex-filtration transmissions and prevents them by monitoring, detecting and blocking sensitive data while in use (endpoint actions), in motion (network traffic), and at rest (data storage). It can feature advanced security measures which employ machine learning and temporal reasoning algorithms to detect abnormal access to data (e.g., databases or information retrieval systems) or abnormal email exchangehoneypots for detecting authorized personnel with malicious intentions and activity-based verification (e.g., recognition of keystroke dynamics) and user activity monitoring for detecting abnormal data access. It can become super useful if the breach is not consequence of a mere error… PROS: effective technology CONS: cannot prevent material errors, expensive.
  • Avoid including personal data in the body of the message and encrypt attachment files, then send the decrypting password through a different email (making the same mistake twice, can happen, less probable though) or a different channel (e.g. SMS message, in app notification). PROS: can effectively limit the risk of a databreach CONS: adds burdens to communication, makes it slower, however you can use in-mail add-ins to make it way faster.

2: Organizational measures

  • Train your employees: yes, that’s so important. The databreach lies between the fingers of your employee ready to send an email without double-checking if the email address is correct. You may wish to give them a proper training, pointing out the risks and pains which can arise from such an inaccurate move.
  • Get in contact with the recipient: once an email has been successfully sent, there is no way to call back or delete it from recipient inbox. Still you can get into contact with the unintentional recipient explaining that the email was a mistake, and ask them to not read the message – if that’s still possible.
  • Take note: study what happened and what fault caused the incident, in order to plan some follow-up action to limit the possibility it happens again. Document this process. It will be an aid to your defense in case of an investigation by the data protection authorities.

In any case, as a data controller you should carry out a databreach severity assessment in order to assess if the incident shall be communicated to the data subjects involved or notified to the supervisory authority. We built an automatic tool to do that for you, taking into account the EU (ENISA + EDPB) standards. If you wish to know more, get in contact here.


In the next TechnoLawgy post we will assess how to handle a databreach once it happens and how to evaluate whether it shall be notified to the Supervisory Authority. Meanwhile you may fancy a look here: DATA BREACH NOTIFICATION: NEW PROCEDURE ADOPTED IN ITALY also you can find the dedicated #databreach podcast here.

For more info drop me a line via Twitter –  Fb or Telegram  

If you think this information is valuable share it on your #SocialMedia, Be Influent!

Also don’t miss our Telegram channel @TechnoLawgy for the latest #Privacy and #LegalTech news!


Handling a DataBreach during Covid-19


Simple. Because data breaches happen every day. Therefore being able to handle a databreach, especially during covid19 emergency, is crucial.

Since 25 May 2018 to 31 March 2020, 2,368 breaches were notified to the Data Protection Supervisor, with a peak between 30 September and 31 December 2019 of 553 notifications followed in the latest period (i.e. from January to March) by 295 notifications. This does not mean, however, that this number actually corresponds to the number of data breaches suffered because, as we will see below, not all breaches must be notified.

In this post we will assess how to prevent a databreach.

The current cybersecurity scenario

The most recent report by Clusit – Italian Association for Information Security, which reported how – in 2019 alone – about 1670 cyber attacks occurred in Italy, with a growth percentage of 7.6% compared to 2018 and 91.2% compared to 2014. This percentage, however, refers only to real attacks, i.e. those that have overcome all the existing defenses adopted by data controllers or data processors and have therefore caused significant damage, without considering failed and/or blocked attack attempts. The report also highlights that those affected by cyber attacks belong to the most varied categories, from companies providing online or cloud services to telcos, from the retail sector to the chemical/pharmaceutical or banking sector. This shows that no company processing personal data is immune from this type of danger.

Risks during emergency periods

Today, moreover, there is a further reason to talk about data breaches: as we will see in more detail, the emergency situation we are experiencing prevents – at least at the moment – all workers from going to their offices, so that many of these workers are turning to the remote working mode, which involves significant risks.


First of all, it should be pointed out that most data breaches are caused either by the adoption of insufficient technical security measures or by real human errors. It therefore one of the most effective ways of avoiding this is to adopt, as required by the legislation, security measures – both technical and organisational – that are appropriate.
Now, the concept of adequacy is certainly mutable, since – unlike in the past – the GDPR does not indicate minimum measures to be taken to ensure data security, but on the contrary, it requires the controller to make a case-by-case assessment of what is actually adequate, taking into account

  • the state of the art and the costs of implementing the measures it intends to adopt,
  • the nature, object, context and purposes of the processing,
  • risks to the rights and freedoms of natural persons.

Organizational measures

In this context, from an organisational point of view, an internal privacy compliance model is certainly essential. It is therefore necessary to identify the individuals who have a privacy role . In this context, it is very often assumed that the appointment of a Data Protection Officer is sufficient, but this is not the case. If the appointment of a DPO is necessary with respect to certain activities related to the data controller, this does not mean that the DPO should be called upon to ensure the privacy compliance of the data controller, as is often the case. On the contrary, the DPO plays the role of advisor and controller of the controller’s activities, providing advice and suggestions, but then the final decision is up to the controller, who must therefore be well aware of the risks arising from its choices.
This policy, depending on the circumstances, must identify the roles assigned to each person processing personal data and consequently the obligations and instructions applicable to them. In this context, fundamental precautions become both (i) ensuring that the procedures adopted are made known to the entire company population and (ii) that they are well understood also through training activities for employees and collaborators.

Technical measures for remote working

In addition to this, there are all the technical security measures that the owner must adopt, and GDPR, for example, refers merely to the pseudonymisation and encryption of personal data, however their suitability must again be assessed on the basis of the actual processing.

Many authorities and institutions, such as the Department of Public Administration, ENISA and the Irish Data Protection Supervisor, have provided suggestions and guidelines on practices to be followed to ensure IT security in remote working. From a technical point of view, the main solutions that the employer can use are:

  • the activation of a VPN connection, i.e. that “secure” communication channel between the remote device and the company, through which applications and company data can be accessed directly;
  • the setting up of a remote device management system, with which the company’s IT technicians can monitor and manage any problems, after assessing the privacy compatibility of these tools with the provisions of the Workers’ Statute;
  • the use of ACL (Access Control List) systems, particularly effective in limiting the risk of unauthorized access, dissemination, loss and destruction of data.


In addition to technical measures, employee awareness and training are essential to stay up to date with the latest threats. In particular, adequate information about certain essential security concepts should be provided:

  • secure wifi connection; most wifi systems at home today are properly protected, but some older installations may not be. With an unsecured connection, people nearby can snoop around in network traffic;
  • updated security software and antivirus system; PC security tools such as privacy tools, browser add-ons, etc. need to be updated. Patch levels and system updates must be checked regularly;
  • regular backups; all important files must be backed up regularly. In the event of a computer attack, for example, the entire contents of a device could be lost without a backup.

In addition, employers can take action to optimize organizational management in case of incidents or risks, for example by providing a specific procedure to employees on how to react in case of problems and giving appropriate priority to support for remote access solutions, including through the establishment of special shifts for support staff.


In the next TechnoLawgy post we will assess how to handle a databreach once it happens and how to evaluate whether it shall be notified to the Supervisory Authority. Meanwhile you may fancy a look here: DATA BREACH NOTIFICATION: NEW PROCEDURE ADOPTED IN ITALY also you can find the dedicated #databreach podcast here.

For more info drop me a line via Twitter –  Fb or Telegram  

If you think this information is valuable share it on your #SocialMedia, Be Influent!

Also don’t miss my Telegram channel @TechnoLawgy for the latest #Privacy and #LegalTech news!

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EDPB letter on contact tracing App privacy issues

The European Data Protection Board has shared its view on contact tracing app privacy issues.

Following a request for consultation from the European Commission, the European Data Protection Board adopted a letter concerning the European Commission’s draft Guidance on apps supporting the fight against the COVID-19 pandemic. This Guidance on data protection and privacy implications complements the European Commission’s Recommendation on apps for contact tracing, published on 8 April and setting out the process towards a common EU toolbox for the use of technology and data to combat and exit from the COVID-19 crisis.

Key takeaways:

💡 no one-size-fits-all solution applies envisaged technical solutions need to be examined in detail, on a case-by case basis

💡 EDPB believes that it is a step in the right direction to highlight the essential need to consult with data protection authorities

💡 development of the apps should take into account Privacy by design and Privacy by Default mechanisms, and the source code should be made publicly available for the widest possible scrutiny by the scientific community

💡 EDPB strongly supports the Commission’s proposal for a voluntary adoption of such apps, a choice that should be made by individuals as a token of collective responsibility

💡 Legal Basis for the processing? the mere fact that the use of the contact tracing takes place on a voluntary basis, does not mean that the processing of personal data by public authorities necessarily be based on the consent; The enactment of national laws, promoting the voluntary use of the app without any negative consequence for the individuals not using it, could be a legal basis for the use of the apps; it appears that the most relevant legal basis for the processing is the necessity for the performance of a task for public interest

💡 Contact tracing apps do not require location tracking of individuals users. Collecting an individual’s movements in the context of contact tracing apps would violate the principle of data minimisation. In addition, doing so would create major security and privacy risks

💡 the main function of such apps is to discover events (contacts with positive persons), such events can be stored both at local level (within the device of the user) and centralized level; according to the EDPB the decentralised solution is more in line with the minimisation principle

💡 these apps are not social platforms for spreading social alarm or giving rise to any sort of stigmatisation. a mechanism should ensure that whenever a person is declared as COVID-positive, the information entered in the app is correct, since this may trigger notifications to other people concerning the fact that they have been exposed

💡 once this crisis is over, such emergency system should not remain in use, and as a general rule, the collected data should be erased or anonymised.

For more info drop me a line via Twitter –  Fb or Telegram  

If you think this information is valuable, repay my effort and share it on your #SocialMedia, Be Influent! 

Also don’t miss my Telegram channel @TechnoLawgy for the latest #Privacy and #LegalTech news!


Privacy: come prepararsi alla Brexit

La Brexit potrebbe comportare cambiamenti sostanziali nella strategia di compliance privacy delle società, soprattutto quelle con sedi nel Regno Unito o che scambiano dati personali con società basate in U.K. . Il Garante privacy lo scorso 18 febbraio 2019 ha reso noto che il Comitato Europeo per la Protezione dei Dati (EDPB) in una recente nota informativa ha chiarito quali conseguenze potrebbe avere su tale flusso di dati personali l’ uscita del Regno Unito dall’UE senza accordo. Ormai è ufficiale, la Brexit avverrà il 31 marzo 2020, per di più senza un accordo (cosiddetto “No Deal”). Vediamo i principali impatti operativi per le aziende e come prepararsi allo scenario di Brexit senza accordo con l’Ue (“Hard Brexit”) anche alla luce dei suggerimenti del Garante. Continua a leggere


Facebook “free” claim sanctioned

Facebook is not free anymore (and has never been)

Half victory of #Facebook in Italy on the #privacy side: the Regional Administrative Court of Lazio (TAR) partially voided the Antitrust Authority’s decision which sanctioned the company for a total of 10 million euros.

> The Court has confirmed the 5 million sanction for unfair commercial practices regarding the false claim “it’s free and will always be”, which is no longer in place.

 > however the 5 million sanction relating to the sharing of data with third party sites and services has been dismissed.

According to the Court the Antitrust sanction “is unlawful because it lacks in the reconstruction of the functioning of the integration of the platforms and there is absence of sufficient evidence of a conduct capable of influencing consumer choice”.

This conduct is at the root of the Cambridge Analytica scandal, a Facebook partner company that used the data to influence electoral campaigns (including the 2016 US presidential election).

This decision is particularly interesting in light of the currently pending issue in front of the European Data Protection Board raised by the Italian Data Protection Authority: can personal data be exchanged for money?

For more info drop me a line via Twitter –  Fb or Telegram  

If you think this information is valuable, repay my effort and share it on your #SocialMedia, Be Influent! 

Also don’t miss my Telegram channel @TechnoLawgy for the latest #Privacy and #LegalTech news!

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Cyprus GDPR implementation: local peculiarities

The implementing Law and the interplay with GDPR

by Christiana Markou

Another EU country has adopted a GDPR implementation law: the Law on the Protection of Natural Persons with regard the Processing of Personal Data and on the Free Movement of such Data, Law 125(I)/2018 ( “the Law”) was published in the Official Gazette of the Republic of Cyprus on the 31st July 2018.

The purpose of the Law is the effective application (or implementation) of some of the provisions of the General Data Protection Regulation (GDPR). The Law responds to Recital 8 of the GDPR, which allows Member States to implement elements of the Regulation into their national law and to provisions in the GDPR allowing or obligating Member States to expand upon, adapt or deviate from the rules of the Regulation. It only comprises thirty-seven (37) provisions and must be read together with the Regulation, which remains the main piece of legislation governing data protection in Cyprus.

Key features and peculiarities of the Law

Data Processing by Courts & judgements databases

There are a few provisions in the Law that deserve to be highlighted. One of them is Section 5(a), which specifically renders the data processing performed by courts in the exercise of their duties for the purposes of the administration of justice (including the processing necessary for the issuance and publication of their judgements) permissible and lawful. This however does not cover the processing inherent in the operation of databases of judgements by private parties who offer a service to lawyers or the public at large. These entities must ensure that the processing they perform can come under one of the lawful bases of processing listed in Article 6(1), GDPR.

Minors lawful consent

Additionally, the Law, through Section 8(1), takes a rather liberal approach in relation to children deeming them as capable of offering valid consent at a younger age than the one specified by the GDPR, which is 16 years. Notably, the chosen age of 14 years in the Law coincides with the age over which children can be criminally liable in Cyprus as per Section 14 of the Cyprus Criminal Code, Cap. 154.

Biometric data processing

Another provision of the Law, namely Section 9(1) explicitly introduces a prohibition for the processing of genetic and biometric data for the purpose of health and life insurance and also clarifies that when the processing of such data is based on consent, separate consent must be secured for any further processing. This mirrors the Cypriot legislator deeming genetic and biometric data of increased sensitivity. Notably, the Insurance Association of Cyprus has suggested the inclusion in the Law of another derogation from the prohibition of Article 9(1) GDPR, specifically one permitting the processing of special categories of personal data for the purposes of conclusion and performance of insurance contracts. The particular suggestion has not been taken up by the Cypriot legislator and it seems that the GDPR places significant restrictions; insurance companies have to be secure the explicit consent of data subjects in order to process health data concerning them (despite the fact that such processing is strictly necessary for the conclusion and performance of the insurance contract requested by the data subject). Explicit consent entails significant administrative burden, which insurance companies would prefer to avoid. Most certainly, the GDPR is eligible to an interpretation that achieves a fair balance between the interests of the insurance companies and sufficient data protection, yet this requires the co-operation of all relevant stakeholders.

Data transfers outside EU

Section 17(1) is another notable provision. It introduces an obligation for controllers and processors to inform the Commissioner about their intention to transfer special categories of data (such as health data) to third countries (outside the EU) in certain cases. This is important for organisations or businesses in the medical sector which often send blood (or other) samples outside the EU for testing. When the country to which the data is exported is not one for which the European Commission has issued an adequacy decision based on Article 45, GDPR, the Cyprus Commissioner will have to be informed prior to each such transfer. This entails considerable administrative burden, which can be avoided by eliminating the health data exported or through anonymozation, amongst others.

GDPR 1st year implementation report: how is it going?

It is noteworthy that the Cyprus Data Protection Commissioner (“the Commissioner”) has recently published certain statistics on the application of the GDPR during the first year of its life.

According to those statistics, the Commissioner has received 464 complaints (146 of which concerned unsolicited commercial communications) and 55 data breach notifications. The authority has issued 20 decisions, nine of which imposed fines of a total of nearly €37,000 Euros. Furthermore, the Commissioner conducted nine 9 investigations on its own initiative.

These numbers reflect Cyprus as a small Member State of the EU; in other Member States, there have been much more enforcement actions, some of which have led to multi-million fines.

This post is part of TechnoLawgy Guest Post series and has been written by the brilliant  Christiana Markou, Practising lawyer  & Assistant Professor at the European University Cyprus School of Law. For a more in-depth report on Cyprus GDPR implementation click here.

If you are a interested in sharing your expertise with TechnoLawgy international readers hit the Contact button above.   

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Data breach notification: new procedure adopted in Italy

New procedure, new burdens and obligations

With the decision  no. 157 of July 30, 2019, the Italian Data Protection Authority (Garante) has introduced a new official model containing the minimum information required to perform a notification of a personal data breach pursuant to art. 33 of the GDPR. In the past, the Garante had already introduced specific methods and requirements for notifying a data breach in various sectors and with the new decision, the Authority has introduced standardized terms, contents and methods of notification, adding a number of burdens for the notifying entity.

What to include in the notification

The GDPR provides that in the case of a personal data breach, the controller shall without undue delay and, where feasible, not later than 72 hours after having become aware of it, notify the personal data breach to the competent supervisory authority, unless the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons. Likewise, the data processor who becomes aware of a possible violation is obliged to promptly inform the controller so that remediation actions can be performed (Articles 33 and 55 of the GDPR, Art. 2-bis of the Italian Privacy Code).
As a result of the aforementioned Garante’s decision nr. 157, the level of detail of a data breach notification has increased significantly, probably also in order to allow the controller to assess in a responsible manner the actual need to communicate, or not, the same violation also to the natural persons concerned, in accordance with the provisions of Article 34 of the GDPR.

Let’s see how the notification of data breach changes.
In order to perform the notification the data controller shall download the form available on the website of the Garante and fill in the following sections:

  • A. Data of the subject who makes the notification, entering the personal and contact details of the person who actually makes the notification (if appointed, this is the DPO of the holder);
  • B. Data relating to the data controller, meaning the identification data of the controller  (full name of the company, fiscal code, address, …), the contact details of the subject to be contacted for information, such as the DPO or the internal legal counsel (where a DPO has been appointed the relative protocol  number communicated by the Garante after the DPO online registration shall be inserted) and the references of other subjects involved with an indication of the role played in the breach(co-controller or processor, representative of the controller not established in the EU);
  • C. Summary information on the violation, this is one of the most critical sections as it will be necessary to indicate detailed information relating to the violation, including: the exact date on which it occurred, the time and manner in which the controller became aware of it, the reasons for the delay in case of notification beyond 72 hours (if applicable), the nature and cause of the date breach and the categories of personal data and individuals affected, with an indication of their volumes;
  • D. Detailed information on the violation, in addition to the previous section in this one details of the violation must be given, describing in particular the incident underlying the violation, the categories of data violated, the information systems and infrastructures involved in the incident, with an indication of their location and the technical and organizational security measures adopted;
  • E. Possible consequences and seriousness of the violation, this is a section that requires a prognostic effort by the controller who will be required to identify the possible impacts of the violation based on its nature and the potential negative effects for those concerned; it will also be necessary to make a reasoned estimate of the likely seriousness of the data breach;
  • F. Measures taken as a result of the breach, in which all technical and organisational countermeasures adopted to limit the impacts of the breach and of future implications shall be reported in order to prevent future incidents;
  • G. Communication to the data subjects, in this section it will be necessary to specify whether or not the violation has been communicated to data subjects in accordance with Article 34 of the GDPR, and in the event of non-communication it will be necessary to clarify the reasons for such decision;
  • H. Other information, this is a closing section in which details about the cross-border impact of the data breach and any reports already made to other authorities can be entered.

If the data controller is not in possession of all the information required by the form,  a partial notification can be performed, initiating the process even in the absence of a complete picture of the violation, subject to a subsequent supplementary notification.

How to send the notification

The notification form, once completed with the required information, must be sent to the Garante by e-mail at “protocollo@pec.gpdp.it” and must be digitally signed (with qualified electronic signature/digital signature) or with handwritten signature. In the latter case, the notification must be submitted together with a copy of the signatory’s identity document.
The notification should not include personal data concerning the subject  affected by the breach. Furthermore the subject of the message must contain the words “NOTIFICATION OF VIOLATION OF PERSONAL DATA” and, optionally, the name of the data controller.

Next steps

The new notification form requires the controller to collect a large amount of information relating to the breach. In order to be able to perform the notification, the controller must therefore ensure to have implemented appropriate organizational procedures – both internal and external aimed to the data processors – that enable the controller to promptly obtain  all the information necessary to complete the notification.
The notification procedure must be supported keeping the so-called “data breach record”: a document that has the dual function of allowing the controller to easily monitor and control all the violations of personal data occurred and allows the , to verify compliance with the obligation of timely notification.
This register should be prepared in line with the requirements of the notification form to collect all information necessary to adequately document any personal data breach, including the circumstances surrounding it, its consequences and the remediation steps undertaken.

The data breach scenario in Europe and Italy

The phenomenon of data breaches is constantly increasing in Europe. The European Data Protection Board has published a report on the state of implementation of the GDPR 9 months after its full applicability, which notes that the supervisory authorities in Europe have recorded about 64,684 notifications of data breaches, and it is reasonable to assume that since the publication of the report to date this figure has grown further. In this respect according to the World Economic Forum cyber attacks are the greatest threat to companies operating in Europe. In recent years, Europe has been the scene of a long series of major cyber attacks, the number of which increased by about a third in the first quarter of 2018, compared to the same period last year.
These estimates are confirmed by the report presented by the European Union Agency for Network and Information Security (ENISA), according to which, while the number of attacks cyber has increased significantly and their seriousness has increased exponentially. In the first half of 2018, around 4,500 million records were compromised due to data breaches, which represents a big increase compared to 2017, when “only” 2.7 million records were breached in the same period.
As for Italy, according to the most recent estimates available, up to June 30, 2019 the Garante has recorded 1254 confirmed cases of notifications of data breach, with an increase of about 31% compared to the violations recorded up to March.

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