Data protection & privacy digest 3 – 16 May 2023: data processing roles and obligations elaborated by EU top court

TechGDPR’s review of international data-related stories from press and analytical reports.

Legal redress

Pseudonymised (non-personal) data processing: In the instance of SRB v. EDPS, the European General Court ruled that pseudonymised data communicated by one party with another would not be regarded as personal data in the recipient’s hands if that party lacks a legal way to obtain the extra, identifiable information. The lawsuit resulted from the Single Resolution Board, (SRB), decision to conduct a shareholder poll in the case of Banco Popular Español, as part of which it shared the results with a consulting firm. In order to guarantee that replies could not be traced back to specific respondents, SRB pseudonymised the data. The decoding key that might identify specific responses from the alphanumeric codes was not given to the consulting company.

Additionally, the court did not rule out that personal views or opinions may constitute personal data. However, such a conclusion must be based on a case-by-case examination. View the court’s ruling here.

Right to GDPR compensations: The CJEU has recently published a number of rulings related to data subject rights. In one case, Österreichische Post collected information on the political affinities of the Austrian population, using an algorithm. Following lawsuits for compensation from upset citizens who did not consent to that, the Austrian supreme court asked the CJEU whether mere infringement of the GDPR is sufficient to confer that right and whether compensation is possible only if the non-material damage suffered reaches a certain degree of severity. It also asked what are the EU-law requirements for the determination of the amount of damages. 

The EU top court responds that mere infringement of the GDPR does not give rise to a right to compensation. However, there is no requirement for the non-material damage suffered to reach a certain threshold of severity. The court notes that the GDPR does not contain any rules governing the assessment of damages. It is therefore for the legal system of each Member State to prescribe the detailed rules. 

“Copy” of personal data definition: The CJEU also ruled that the right to obtain a ‘copy’ of personal data means that the data subject must be given a faithful and intelligible reproduction of all those data. The Court notes that the term ‘copy’ does not relate to a document as such, but to the personal data which it contains and which must be complete. That right entails the right to obtain copies of extracts from documents or even entire documents or extracts from databases which contain those data. 

The case relates to the CRIF in Austia, (a business consulting agency that provides, at the request of its clients, information on the creditworthiness of third parties). It sent the applicant in question a summary of his personal data undergoing processing. However, the individual had expected a copy of all of the documents containing his data, such as emails and database extracts. After the Austrian data protection authority rejected his complaint, the applicant went to court. 

CJEU opinions

Data controllers’ strict liability: A non-binding opinion by a CJEU Advocate General limits the strict liability of data controllers for GDPR fines: they may only be imposed on intentional or negligent conduct, (‘mens rea’). The referring court wanted to know whether the state agency could be fined on the simple basis that it breached the obligations imposed on it by virtue of being a controller, (strict liability), or whether an element of fault in committing the relevant breach is required. 

The case concerns the Lithuanian Public Health Centre in the design and deployment of a mobile application for tracking COVID-infected people. After funding for the project failed the state agency asked the app developers, (initially defined as joint controllers), not to use the LPHC details or any association with them in the mobile product. However it continued to be available for download by the public unaltered. To that end, the data protection authority decided to impose a fine on both entities in their capacity as joint controllers. 

The CJEU’s opinion confirmed that an entity which initiates the development of a mobile application can only be regarded as the ‘controller’. Furthermore, the absence of any agreement or even coordination between joint controllers cannot exclude a finding that the controllers are ‘joint controllers’.

Concept of lawful “data processing”: In the above case, the referring court also called for clarification as to whether the fact that the unlawful processing of personal data was not done by the controller itself but by a processor affects the ability of supervisory authorities to impose a fine on the controller.

The CJEU reasoned that a controller may be fined even though the unlawful processing is carried out by a processor. That possibility is open for so long as the processor acts on the controller’s behalf. However, if the processor uses personal data outside of, or contrary to, the lawful instructions of the controller, then the controller cannot be fined. 

The concept of ‘processing’ encompasses a situation in which personal data is used during the testing phase of a mobile application, unless such data has been anonymised in such a way that the data subject is not, or no longer, identifiable. 

Official guidance

Direct marketing: Effective direct marketing relies on you having a positive relationship with individuals you are marketing to and that is usually rooted in them having consented to you contacting them, states the latest guidance by the Guernsey data protection authority. The document answers the questions on how to obtain people’s consent in a lawful way, while being able to pursue commercial communication and inform people about what you are doing; explains lawful processing conditions under consent and legitimate interest; looks at the dangers of soft opt-in and automated calling systems and silent calls; and provides options for stopping direct marketing. See the full guidance (in English) here.

Client databases: The Latvian data protection agency also looks at client databases. Customer personal data permeates almost every aspect of business, from the delivery address of an order to the use of customer data to creating a company’s marketing campaign. Whether you only store a customer’s first name, last name and email address, or a personal identification number and bank details, you need to make sure that customer information is kept as correct and as secure as possible. The main principles to be followed are:

  • Determine the purpose for which the database is being created  (eg, administration of fees, sending news, ensuring access).
  • Evaluate and decide exactly what personal data is required from the client, and don’t collect or store personal data just because you think it might come in handy someday, (eg, if you plan to send information only to e-mail, you do not need to ask the customer for a phone number).
  • The information included in the customer database must also be accurate and must be updated as necessary, (eg, inaccurate data may allow the service to be used by a person who has not paid for it).
  • The necessary technical and organisational requirements must be implemented, (eg, limit personnel who can access customer information, maintain employee training, and if you transfer personal data, ensure that it is encrypted).

Enforcement decisions

Concept of warning and expansion of investigation periods: Spain has modified its law on the protection of personal data and clarified that a warning should not be considered a sanction, but rather an appropriate measure, of a non-punitive nature, included within the corrective powers of the supervisory authorities. Additionally, the increase and greater complexity, (including a one-stop-shop mechanism), of the issues addressed by the data protection agency in the sanctioning procedures show the need to extend some of the resolution deadlines. In particular, for this reason, the modification contemplates an increase from nine to twelve months in the maximum duration of disciplinary procedures, and from twelve to eighteen months in previous investigation actions.

TikTok fine: The UK Information Commissioner’s Office has issued a 12,7 million pound fine to TikTok Information Technologies UK Limited and TikTok Inc, for a number of breaches of data protection law, including failing to use children’s personal data lawfully. Whilst TikTok purports to rely on, in part, a contractual necessity as its lawful basis for processing the personal data of children under 13, the Commissioner considers that the legal test for contractual necessity is not met in this case. In addition, TikTok failed to make reasonable efforts to ensure that consent was given or authorised for underage child users of its video-sharing platform or to prevent children under 13 from accessing its services. Read the full list of TikTok’s infringements in the original decision.

Information obligation: The Romanian data protection agency fined Libra Internet Bank for not fulfilling its data subject rights obligation. It was found that a response sent to a plaintiff by e-mail did not contain information about the possibility of filing a complaint before a supervisory authority and introducing a judicial appeal for the bank’s refusal to communicate a copy of a requested video recording, thus violating the provisions of Art. 12 in conjunction with Art. 15 of the GDPR. On the same occasion, the regulator noted that the data controller did not present evidence to show that it had adopted measures to facilitate the exercise of the right of access.

Grocery data: The Norwegian data protection authority has taken a decision to ban Statistics Norway’s planned collection of data from the population’s grocery purchases. Through bank data and bank transaction data, Statistics Norway would have information on what a significant proportion of the population buys for groceries. This in turn could be linked to socio-economic data such as household type, income and level of education. No sufficient legal basis for such intrusive processing of personal data exists. Even if the purpose of the collection is anonymous statistics for societal benefit, the intervention in the individual’s privacy will have already occurred once the personal information was collected, (from private actors). Finally, citizens have no real opportunity to oppose such a collection, other than by using cash as a means of payment.

Debt collection data: Croatia’s privacy regulator issued an administrative fine of over 2 million euros on the debt collection agency. The data controller didn’t inform its data subjects, in an accurate and clear manner, about the processing of their personal data. In addition, it did not conclude a data processing agreement with the service of monitoring consumer bankruptcy. The debt collecting agency also did not apply appropriate technical and organisational measures while processing quite sensitive personal data, so it would probably never have noticed a data breach. 

Data security

Encryption pros and cons: The Spanish data protection agency has published a guide for the supervision of cryptographic systems as a security measure in data protection. Encryption is a procedure by which information is transformed into an apparently unintelligible data set using various techniques. The GDPR mentions it as a measure that is part of the conditions for the compliance of the treatment and as an aid to mitigate the risks in the event of a possible breach of personal data. However, if not well designed it can give a  false sense of security, that relaxes the application of other complementary measures, in particular, privacy by design. The document also proposes a list of controls to facilitate the data protection specialist in selecting those that could be the most appropriate in validating the encryption system. Read the full guide, (in Spanish), here.  

Password hurdle: Reportedly, the average internet user has between 70 and 80 passwords for a wide variety of services, explains the Slovenian data protection agency base on recent research. Considering that a strong password is (at least) 12 characters long, complex and of course unique, it is extremely difficult to remember them all. 

Password managers also offer effective management and safe storage of passwords. In this case, it is important to have a very strong master password, which is also the only one we need to remember. Two-factor authentication solves two of the most common problems: short, weak, and repeated passwords are no longer so problematic since access to the service requires an additional unique code that is obtained over the phone. 

Finally, most information security experts do not recommend saving passwords in browsers. The reason is primarily the rapid spread of Trojan horses that specialize in stealing user data. Nothing helps if we have long and unique passwords, because the virus simply copies them and sends them to attackers.

International data transfers

US data transfers: The European Parliament has rejected the draft US adequacy decision during the plenary vote. However the resolution is not binding, MEPs concluded that the EU-US Data Privacy Framework fails to create essential equivalence on the level of protection, and calls on the Commission to continue negotiations with its US counterparts to provide the adequate level of protection required by Union data protection law as interpreted by the CJEU. MEPs call on the Commission not to adopt the adequacy finding until all the recommendations – on safeguards against American intelligence activities, and practical deployment of the redress mechanism for individuals are fully implemented. 

To that end, a parliamentary group from the Civil Liberties Committee visits the US capital this week to meet with members of the House of Representatives and Senators working on privacy, and cybersecurity issues, including sponsors of different federal privacy acts – the Federal Trade Commission, US Courts administration, Department of State, the Data Protection Review Court, the Office of the Director of National Intelligence, NGOs, and think-tanks. 

UK privacy reform: According to, the Information Commissioner gave assurances to UK lawmakers considering changes to the country’s national privacy legislation that they won’t jeopardize the adequacy decision made with the EU in 2021. The Data Protection and Digital Information Bill was once again proposed this spring by the Conservative government as an alternative to the GDPR that is more pro-innovation and less bureaucratic. External observers, however, are less certain, citing rulings by the ECHR that British mass intelligence collecting infringed private communications

Supporting documents assessing the impact of the Data Protection and Digital Information Bill can be seen here.

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