The question of how data privacy rights bite within the online environment is undoubtedly one of the most important questions with which 21^st century information rights practitioners have to grapple. It is also one of the most difficult. This is not least because this is an area which is dominated by a European legislative triumvirate which is highly complex and, in a number of areas, heavily under-tested. That triumvirate comprises: the Data Protection Directive (95/46/EC), the E-Privacy Directive (2002/58/EC) and the E-Commerce Directive (2000/31/EC). Continue reading →

FOIA does not have a particularly illustrious history in the Court of Appeal. Very few of the judgments which have issued from those august halls provide wider appellate guidance of the type generally useful from the higher courts, and some have been so deathly dull (I’m looking at you, Innes) that even the data protection cases look exciting. So it is with the Court of Appeal decision in Department for Work and Pensions v Information Commissioner & Zola [2016] EWCA Civ 758.

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One of the most interesting difficulties for data protection lawyers over the last few years (wake up at the back) has been the application of a DPA and a Directive drafted in an analogue age to a new digital world. The internet has posed many difficulties, and working out how to apply data protection law to it has been just one of them. It is an area which has begun to repeatedly trouble the CJEU. In Case C-191/15, Verein für Konsumenteninformation v Amazon EU Sàrl (judgment of 28 July 2016) the CJEU returned to the tricky and sui generis way the Directive deals with questions of the applicable law to data protection disputes. Continue reading →

While on the subject of data protection and jurisdictional questions (see my earlier post about the Microsoft case), I thought it worth pointing out the Advocate General’s opinion in Verein für Konsumenteninformation v Amazon EU Sàrl (Case C-191/15), issued in recent weeks.

The Microsoft case concerned the limits of US jurisdiction over data held on servers in the EU. What about data held within the EU, but which is being processed in a number of EU member states? Is the data controller subject to the jurisdiction of all of those states? If so, life is potentially very complicated: data protection law in the EU is supposed to be harmonised, but there will always be legitimate variations in how member states implement aspects of the overarching law. Continue reading →

The judgment of the 2^nd US Circuit Court of Appeals in New York in Microsoft Corporation v USA (Case 14-2985), handed down on 14 July 2016, has been hailed as an important victory not only for the technology giant, but for privacy rights as well.

In brief, the case concerned a warrant issued under the Stored Communications Act (dating from 1986), ordering Microsoft to seize and produce to the US government the contents of a customer’s email account, on the grounds that there was cause to believe the email account was being used for the purposes of drugs trafficking. Microsoft refused to comply in full, on the grounds that the contents of the email account were stored on a server in Dublin. A court held Microsoft to be in contempt. Microsoft appealed. It won. Continue reading →

Facebook nemesis Max Schrems threw into serious disarray the whole (commercially vital) business of EU-US data transfers when his litigation destroyed the Safe Harbor arrangements. A fix was needed, quickly. The European Commission came up with a fix called the “Privacy Shield”. Some, including members of the Panopticon fold, had a disdainful – even gently mocking – take on the Privacy Shield: see for example Chris’ synopsis here. More importantly, the EU’s Article 29 Working Party did not seem entirely impressed by the Privacy Shield proposal.

Earlier this month, however, the EU member states approved the Privacy Shield. Continue reading →