This cartoon is about the GDPR’s lawful basis requirement to process personal data. One of the biggest differences between U.S. and EU privacy law is that in the U.S., organizations can collect and use personal data in nearly any way they choose as long as they state what they are doing in their privacy notice and follow what they say. In the EU, in contrast, the GDPR requires that organizations have a “lawful basis” to collect and process personal data. The GDPR specified six lawful bases, including consent, performance of a contract, compliance with a legal obligation, public interest, protect the vital interests of the data subject or other people, and legitimate interest in processing the data.
Many organizations use legitimate interest as their lawful basis.
Article 6(1)(f) of the GDPR provides:
1.Processing shall be lawful only if and to the extent that at least one of the following applies:
(f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.
It is an understatement to say that a lot has happened in privacy law during the past decade. Here is my list of the most notable developments.
NOTE: I am giving a particular emphasis to what I find to be notable from a United States perspective. What is notable privacy law depends upon where one is situated. For example, if one is from a small country, that country’s developments are quite notable even if not well-known on a worldwide stage.
This cartoon depicts the challenges of multi-jurisdictional privacy law compliance. In 2018, organizations scrambled to comply with the GDPR. In 2019, businesses are scrambling to comply with the California Consumer Privacy Act (CCPA). And, there will be a new referendum on privacy law in California next year — CCPA 2.0. There’s a flurry of legislative activity in the states on privacy — IAPP has a great chart tracking what is going on. And, each year, more and more countries are passing new comprehensive privacy laws.
We are witnessing the growing pains of privacy law. Privacy wasn’t adequately regulated for too long, and now the concerns are festering, sparking a rush to action. In the US, state legislation on privacy will continue until the concerns are allayed. A thoughtful and powerful federal law could weaken the enthusiasm for states to jump into the fray, but this is a challenge with Congress as polarized as it is.
I’m thrilled to interview K Royal, Senior Director, Western Region, Privacy, at TrustArc. K has had a long career in privacy law, having served as privacy counsel for several companies. She’s also an adjunct professor at Arizona State University.
Prof Solove: What is the need for a multi-jurisdictional approach to privacy laws?
K Royal: With the European Union’s General Data Protection Regulation (GDPR), the California Consumer Privacy Act (CCPA), and other laws such as the Brazilian General Data Protection Law (“Lei Geral de Proteção de Dados” or “LGPD”), businesses must be prepared to comply with a variety of laws around the world.
Privacy is a complex, multi-level, comprehensive concept which is now being regulated in more than 130 countries with more than 500 privacy laws. To be successful in complying with so many laws, businesses must develop a multi-jurisdictional approach to privacy laws that is consistent and predictable yet also not one-size-fits-all.
Prof Solove: Can a company just set one high bar and just treat all personal data the same?
This cartoon depicts how, after the GDPR, countless websites have cookie notices and require agreeing to accept cookies. I find these cookie notices to be form over substance. These notices are virtually meaningless and don’t help consumers. They are a nuisance. They give privacy a bad name because people start to think that privacy is just about a bunch of silly notices and needless extra clicks.
Formalistic “protections” of privacy such as these cookie notices are a big fail. These cookie notices create the illusion of doing something about privacy, but nothing really meaningful is happening here.