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10 Implications of the New EU General Data Protection Regulation (GDPR)

Daniel Solove
Founder of TeachPrivacy

EU GDPR Training General Data Protection Regulation

EU Flag EU Privacy TrainingLast week, the EU issued the General Data Protection Regulation (GDPR), a long-awaited comprehensive privacy regulation that will govern all 28 EU member countries.  Clocking in at more than 200 pages, this is quite a document to digest.  According to the European Commission press release: “The regulation will establish one single set of rules which will make it simpler and cheaper for companies to do business in the EU.”

The GDPR has been many years in the making, and it will have an enormous impact on the transfer of data between the US and EU, especially in light of the invalidation of the Safe Harbor Arrangement earlier this year.  It will has substantial implications for any global company doing business in the EU.  The GDPR is anticipated to go into effect in 2017.

Here are some of the implications I see emerging from the GDPR as well as some questions for the future:

1. Penalties and Enforcement

Under Article 79, violations of certain provisions will carry a penalty of “up to 2% of total worldwide annual turnover of the preceding financial year.”  Violations of other provisions will carry a penalty of “up to 4% of total worldwide annual turnover of the preceding financial year.”  The 4% penalty applies to “basic principles for processing, including conditionals for consent,” as well as “data subjects’ rights” and “transfers of personal data to a recipient in a third country or an international organisation.”

These are huge penalties.  Such penalties will definitely be a wake-up call for top management at companies to pay more attention to privacy and to provide more resources to the Chief Privacy Officer (CPO).  Now we can finally imagine the CEO at a meeting, with her secretary rushing over to her and whispering in her ear that the CPO is calling.  The CEO will stand up immediately and say: “Excuse me, but I must take this call.  It’s my CPO calling!”

EU Privacy Training Money

To date, EU enforcement of its privacy laws has been spotty and anemic, so much so that many characterize it as barely existent.  Will the new GDPR change enforcement?  With such huge fines, the payoff for enforcement will be enormous.  We could see a new enforcement culture emerge, with more robust and consistent enforcement.  If privacy isn’t much of a priority of upper management at some global companies, it will be soon.

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Privacy Law: From a National Dish to a Global Stew

Daniel Solove
Founder of TeachPrivacy

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By Daniel J. Solove
This post is co-authored by Professor Neil Richards

The recent case of Google v. Vidal-Hall in the UK has generated quite a buzz, with Omer Tene calling it the “European privacy judicial decision of a decade.”

The case illustrates several fascinating aspects of the developing global law of privacy, with big implications for online marketing, Big Data, and the Internet of Things.

At first blush, it is easy to see the case as one more divergence between how privacy is protected in the EU and US, with a European Court once again showing how much eager it is to protect privacy than an American one. But the biggest takeaway from the case is not one of divergence; it is one of convergence!

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Privacy Torts in Canada and the International Convergence of Privacy Law

Daniel Solove
Founder of TeachPrivacy

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In a recent case, the Court of Appeal for Ontario, Canada recognized the privacy torts that are widely-recognized in the United States.  Many foreign common law jurisdictions, including the United Kingdom and other countries, have steadfastly refused to recognize the privacy torts spawned by the 1890 law review article by Samuel Warren and Louis Brandeis, The Right to Privacy,  4 Harv. L. Rev. 193 (1890).  These torts – intrusion upon seclusion, public disclosure of private facts, false light, and appropriation of name or likeness – are known collectively as “invasion of privacy.”  In the case of Jones v. Tsige, 2012 ONCA 42 (Jan. 18, 2012), the Court of Appeal for Ontario finally recognized the US privacy tort of intrusion upon seclusion – intentionally intruding upon a person’s seclusion or solitude, or into his private affairs.

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