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Data Protection 2017 ICLG The International Comparative Legal Guide to: Data Protection 2017 4th Edition A practical cross-border insight into data protection law Published by Global Legal Group, with contributions from: Affärsadvokaterna i Sverige AB Hunton & Williams Bae, Kim & Lee LLC Koushos Korfiotis Papacharalambous LLC Bagus Enrico & Partners Lee and Li, Attorneys-at-Law Creel, García-Cuéllar, Aiza y Enríquez, S.C. LPS L@w Cuatrecasas Matheson Dittmar & Indrenius Mori Hamada & Matsumoto Drew & Napier LLC Osler, Hoskin & Harcourt LLP Ecija Abogados Pachiu & Associates ErsoyBilgehan Pestalozzi Attorneys at Law Ltd. Eversheds Sutherland Portolano Cavallo GANADO Advocates Gilbert + Tobin Rato, Ling, Lei & Cortés Lawyers GRATA International Rossi Asociados Hacohen & Co. Subramaniam & Associates (SNA) Herbst Kinsky Rechtsanwälte GmbH Wikborg Rein Advokatfirma AS The International Comparative Legal Guide to: Data Protection 2017 General Chapter: 1 All Change for Data Protection: The European Data Protection Regulation – Bridget Treacy & Anita Bapat, Hunton & Williams 1 Country Question and Answer Chapters: Contributing Editors 2 Australia Gilbert + Tobin: Melissa Fai & Alex Borowsky 7 Anita Bapat and Aaron P. Simpson, Hunton & Williams 3 Austria Herbst Kinsky Rechtsanwälte GmbH: Dr. Sonja Hebenstreit & Dr. Isabel Funk-Leisch 23 Sales Director Florjan Osmani 4 Belgium Hunton & Williams: Wim Nauwelaerts & David Dumont 34 Account Director 5 Canada Osler, Hoskin & Harcourt LLP: Adam Kardash & Brandon Kerstens 43 Oliver Smith 6 Chile Rossi Asociados: Claudia Rossi 53 Sales Support Manager Paul Mochalski 7 China Hunton & Williams: Manuel E. Maisog & Judy Li 60 Sub Editor 8 Cyprus Koushos Korfiotis Papacharalambous LLC: Anastasios Kareklas & Hollie Parker Georgia Charalambous 67 Senior Editors 9 Finland Dittmar & Indrenius: Jukka Lång & Iiris Keino 76 Suzie Levy, Rachel Williams 10 France Hunton & Williams: Claire François 84 Chief Operating Officer Dror Levy 11 Germany Hunton & Williams: Anna Pateraki 93 Group Consulting Editor 12 India Subramaniam & Associates (SNA): Hari Subramaniam Alan Falach & Aditi Subramaniam 105 Publisher 13 Indonesia Bagus Enrico & Partners: Enrico Iskandar & Bimo Harimahesa 117 Rory Smith 14 Ireland Matheson: Anne-Marie Bohan & Andreas Carney 125 Published by Global Legal Group Ltd. 15 Israel Hacohen & Co.: Yoram Hacohen 138 59 Tanner Street London SE1 3PL, UK 16 Italy Portolano Cavallo: Laura Liguori & Adriano D’Ottavio 147 Tel: +44 20 7367 0720 17 Japan Mori Hamada & Matsumoto: Hiromi Hayashi & Rina Shimada 156 Fax: +44 20 7407 5255 Email: [email protected] 18 Kazakhstan GRATA International: Leila Makhmetova & Saule Akhmetova 167 URL: www.glgroup.co.uk 19 Korea Bae, Kim & Lee LLC: Tae Uk Kang & Susan Park 176 GLG Cover Design F&F Studio Design 20 Macau Rato, Ling, Lei & Cortés Lawyers: Pedro Cortés & José Filipe Salreta 185 GLG Cover Image Source 21 Malta GANADO Advocates: Dr. Paul Micallef Grimaud & Dr. Philip Mifsud 194 iStockphoto 22 Mexico Creel, García-Cuéllar, Aiza y Enríquez, S.C.: Begoña Cancino Garín 202 Printed by 23 Norway Wikborg Rein Advokatfirma AS: Dr. Rolf Riisnæs Ashford Colour Press Ltd & Dr. Emily M. Weitzenboeck 209 May 2017 24 Portugal Cuatrecasas: Leonor Chastre 220 Copyright © 2017 Global Legal Group Ltd. 25 Romania Pachiu & Associates: Mihaela Cracea & Alexandru Lefter 231 All rights reserved No photocopying 26 Russia GRATA International: Yana Dianova 242 27 Senegal LPS L@w: Léon Patrice Sarr & Ndèye Khady Youm 255 ISBN 978-1-911367-50-5 ISSN 2054-3786 28 Singapore Drew & Napier LLC: Lim Chong Kin & Charmian Aw 263 Strategic Partners 29 South Africa Eversheds Sutherland: Tanya Waksman 273 30 Spain Ecija Abogados: Carlos Pérez Sanz & Pia Lestrade Dahms 281 31 Sweden Affärsadvokaterna i Sverige AB: Mattias Lindberg 291 32 Switzerland Pestalozzi Attorneys at Law Ltd.: Michèle Burnier & Lorenza Ferrari Hofer 300 33 Taiwan Lee and Li, Attorneys-at-Law: Ken-Ying Tseng & Rebecca Hsiao 310 34 Turkey ErsoyBilgehan: Zihni Bilgehan & Yusuf Mansur Özer 319 35 United Kingdom Hunton & Williams: Anita Bapat & Adam Smith 327 36 USA Hunton & Williams: Aaron P. Simpson & Jenna N. Rode 336 Further copies of this book and others in the series can be ordered from the publisher. Please call +44 20 7367 0720 Disclaimer This publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice. Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication. This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified professional when dealing with specific situations. WWW.ICLG.COM Chapter 1 All Change for Data Protection: The European Bridget Treacy Data Protection Regulation Hunton & Williams Anita Bapat law. This will streamline and harmonise EU data protection law to a Introduction significant extent. Local variances will still remain in a number of areas, such as processing personal data for health, employment and statistical After a long process to update Europe’s data protection laws, purposes. Additionally, Member States may decide to impose further the General Data Protection Regulation will enter into force on obligations under national law. For example, in February 2017, the 25 May 2018 (“Regulation”) [1]. The advent of the Regulation German federal cabinet adopted a draft data protection bill in order follows a lengthy legislative process which took over three years to supplement the Regulation and provide further requirements in to complete. Whilst most were agreed on the need to reform the relation to, amongst other things, data protection officers, restrictions current Data Protection Directive (EC/95/46/EC) and replace it on penalties for non-compliance and exemption from the notice with a law that was appropriate for the complex and sophisticated requirements. Other Member States may well follow suit and so data-driven world in which we live, the content of the new law was organisations will still need to be aware of other relevant local laws. heavily negotiated. The Regulation will significantly increase the compliance obligations of organisations that process personal data, strengthen the rights of individuals in relation to their data, and One Stop Shop and Consistency Mechanism extend the enforcement powers of regulators, including the ability to impose fines of up to €20 million or 4% of global revenue. With just One of the cornerstones of the Regulation is the ‘One Stop Shop’. over a year until the Regulation takes effect, organisations should be At present, organisations may be subject to the supervisory powers assessing their compliance posture now, and taking steps to prepare of the data protection authorities of several Member States, each for implementation. This chapter offers a practical perspective for of which may have a different approach to an issue and differing organisations preparing for change. powers of enforcement. For organisations with business operations in several Member States, it is time-consuming to deal with multiple regulators, and difficult (and expensive) to accommodate the Overview of Key Changes differing approaches that regulators may take in relation to the same issue. The One Stop Shop was designed to overcome these practical In many ways, the Regulation is an enhanced, more rigorous version difficulties and allow for the supervisory authority of a business’ of the existing Data Protection Directive, using much of the same main establishment (i.e., the place where the main processing terminology and many of the concepts with which data protection activities take place), or its only establishment in Europe, to be the practitioners are familiar. For example, conditions for processing ‘lead’ authority for cross-border data processing [2]. In theory, this personal data, consent for processing and notice requirements all should mean less duplication and time spent dealing with multiple remain. Where apparently small tweaks have been made to the text, regulators. Draft guidance released by the Article 29 Working Party organisations should be cautious: in many cases, minor tweaks (such in December 2016 for public consultation [3] makes it clear that it as the strengthened requirements for consent) will have a significant is possible to have different main establishments, and therefore lead practical impact on internal processes, and may take some time to supervisory authorities, for different processing activities, e.g., HR socialise within organisations. Other concepts, such as the ‘One processing, customer data, etc. It should be noted, however, that the Stop Shop’, data portability and breach reporting are brand new appointment of a lead supervisory authority does not prevent other and will require careful analysis to implement. A number of key supervisory authorities from asserting jurisdiction over matters that provisions are explained below. concern them, such as complaints made within their jurisdiction [4]. This, combined with the fact that Member States have carve outs for Harmonisation certain matters, such as employment law, and may impose further legal requirements in addition to the Regulation (see above), means The existing European Data Protection Directive has required local that the One Stop Shop may have limited practical benefit. implementation by each Member State, and individual Member In order to ensure that the
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