CIPP-E Certified Information Privacy Professional/Europe (CIPP/E) Questions and Answers

The General Data Protection Regulation (GDPR) does not prohibit surveillance of employees in the workplace. Still, it requires employers to follow special rules to ensure that the rights and freedoms of employees are protected when processing their personal data. The GDPR applies to any processing of personal data in the context of the activities of an establishment of a controller or a processor in the EU, regardless of whether the processing takes place in the EU or not. The GDPR also applies to the processing of personal data of data subjects who are in the EU by a controller or processor not established in the EU, where the processing activities are related to the offering of goods or services to data subjects in the EU or the monitoring of their behaviour as far as their behaviour takes place within the EU.

The GDPR requires that any processing of personal data must be lawful, fair and transparent, and based on one of the six legal grounds specified in the regulation. The most relevant legal grounds for employee surveillance are the legitimate interests of the employer, the performance of a contract with the employee, or the compliance with a legal obligation. The GDPR also requires that any processing of personal data must be limited to what is necessary for the purposes for which they are processed, and that the data subjects must be informed of the purposes and the legal basis of the processing, as well as their rights and the safeguards in place to protect their data.

The GDPR also imposes specific obligations and restrictions on the processing of special categories of personal data, such as biometric data, which reveal racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, or which are processed for the purpose of uniquely identifying a natural person. The processing of such data is prohibited, unless one of the ten exceptions listed in the regulation applies. The most relevant exceptions for employee surveillance are the explicit consent of the data subject, the necessity for the purposes of carrying out the obligations and exercising specific rights of the controller or of the data subject in the field of employment and social security and social protection law, or the necessity for reasons of substantial public interest.

The GDPR also sets out the rules and requirements for the transfer of personal data to third countries or international organisations, which do not ensure an adequate level of data protection. The transfer of such data is only allowed if the controller or processor has provided appropriate safeguards, such as binding corporate rules, standard contractual clauses, codes of conduct or certification mechanisms, and if the data subjects have enforceable rights and effective legal remedies.

Based on the scenario, the only monitoring that may be lawfully performed within the scope of Gentle Hedgehog’s business is the monitoring of emails, website browsing history and camera for internal video calls that are expressly marked as monitored. This option is the most consistent with the GDPR’s principles and requirements, as it:

Is based on the legitimate interests of the employer to ensure the productivity, quality and security of the work performed by the employees, as well as the performance of a contract with the employees and the compliance with a legal obligation to prevent fraud and protect confidential information.

Is limited to what is necessary for the purposes of the monitoring, as it only covers the work-related activities and communications of the employees, and excludes the private or personal ones.

Is transparent to the employees, as it informs them of the monitoring and its precise scope, and gives them the opportunity to object or opt out of the monitoring.

Does not involve the processing of special categories of personal data, such as biometric data or data revealing political opinions or trade union membership, which are not necessary or proportionate for the purposes of the monitoring.

Does not involve the transfer of personal data to a third country, such as China, which does not provide an adequate level of data protection, and which may pose additional risks for the rights and freedoms of the employees.

The other options listed in the question are not lawful monitoring within the scope of Gentle Hedgehog’s business, as they:

Are not based on a valid legal ground for the processing of personal data, as they either rely on the consent of the employees, which is not freely given, informed and specific, or on the legitimate interests of the employer, which are not balanced with the rights and freedoms of the employees.

Are not limited to what is necessary for the purposes of the monitoring, as they involve the collection and processing of excessive and irrelevant personal data, such as camera and microphone monitoring, screen captures, keystrokes, and facial recognition data, which go beyond the scope of the work performed by the employees, and intrude into their private or personal sphere.

Are not transparent to the employees, as they do not inform them of the monitoring and its precise scope, and do not give them the opportunity to object or opt out of the monitoring.

Involve the processing of special categories of personal data, such as biometric data or data revealing political opinions or trade union membership, which are not necessary or proportionate for the purposes of the monitoring, and which do not fall under any of the exceptions listed in the regulation.

Involve the transfer of personal data to a third country, such as China, which does not provide an adequate level of data protection, and which may pose additional risks for the rights and freedoms of the employees.

References:

GDPR, Articles 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 44, 45, 46, 47, 48, and 49.

EDPB Guidelines 3/2019 on processing of personal data through video devices, pages 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14.

EDPB Guidelines 07/2020 on the concepts of controller and processor in the GDPR, pages 19, 20, 21, 22, 23, 24, 25, 26, 27, and 28.

EDPB Guidelines 4/2019 on Article 25 Data Protection by Design and by Default, pages 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, and 28.

EDPB Guidelines 2/2018 on derogations of Article 49 under Regulation 2016/679, pages 4, 5, 6, 7, 8, 9, 10, 11, and 12.

Data protection: GDPR and employee surveilance | Feature | Law Gazette, paragraphs 1, 2, 3, 4, 5, 6, 7, and 8.

 According to the CIPP/E study guide, the Data Protection Law Enforcement Directive (LED) is a piece of EU legislation that ensures the protection of personal data of individuals involved in criminal proceedings, be it as witnesses, victims or suspects1. The LED applies to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties2. Article 4 of the LED sets out the principles relating to the processing of personal data, which include lawfulness, fairness, purpose limitation, data minimisation, accuracy, storage limitation, integrity and confidentiality3. Article 4 (1) (e) of the LED states that personal data shall be processed lawfully, where processing is necessary for the performance of a task carried out by a competent authority for the purposes of the LED, and where processing is based on Union or Member State law which shall meet an objective of general interest, respect the essence of the right to the protection of personal data and be proportionate to the legitimate aim pursued3. Therefore, a government can carry out covert investigations involving personal data, as long as it is set forth by law and constitutes a measure that is both necessary and proportionate to the objective of general interest, such as the prevention or prosecution of criminal offences. References: 1: CIPP/E study guide, page 1; Data protection in law enforcement2: CIPP/E study guide, page 2; Art. 2 LED3: CIPP/E study guide, page 3; Art. 4 LED.

The General Data Protection Regulation (GDPR) introduces several obligations for processors who process personal data on behalf of controllers. These obligations apply to any processing of personal data in the context of the activities of an establishment of a controller or a processor in the EU, regardless of whether the processing takes place in the EU or not. The GDPR also applies to the processing of personal data of data subjects who are in the EU by a controller or processor not established in the EU, where the processing activities are related to the offering of goods or services to data subjects in the EU or the monitoring of their behaviour as far as their behaviour takes place within the EU.

The GDPR’s list of processor obligations regarding cloud computing includes all of the following:

Controllers must be given notice of any subprocessors and have a right of objection. According to Article 28 of the GDPR, a processor shall not engage another processor without prior specific or general written authorisation of the controller. In the case of general written authorisation, the processor shall inform the controller of any intended changes concerning the addition or replacement of other processors, thereby giving the controller the opportunity to object to such changes.

Individuals authorized to process the personal data are subject to an obligation of confidentiality. According to Article 28 of the GDPR, the processor shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

Processors must implement technical and organizational measures to ensure a level of security appropriate to the risk. According to Article 32 of the GDPR, the processor shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons.

The GDPR’s list of processor obligations regarding cloud computing does not include the following:

Any personal data related to data subjects must be securely maintained for a maximum of ten years. The GDPR does not specify a precise time limit for the storage of personal data, but leaves it to the controller to determine the appropriate retention period, taking into account the nature, scope, context and purposes of the processing, as well as the risks for the rights and freedoms of data subjects. The GDPR also allows for the further storage of personal data for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes, subject to appropriate safeguards. Therefore, the processor must follow the instructions of the controller regarding the storage duration of the personal data, and delete or return the personal data to the controller after the end of the provision of services relating to the processing, unless required to store the personal data by Union or Member State law.

References:

GDPR, Articles 3, 4, 28, 29, 32, 51, 55, 56, 57, 58, 60, 61, 62, 63, 64, 65, 66, 67, and 68.

EDPB Guidelines 07/2020 on the concepts of controller and processor in the GDPR, pages 19, 20, 21, 22, 23, 24, 25, 26, 27, and 28.

Cloud Computing and GDPR: what you need to know | Combell, paragraphs 1, 2, 3, 4, 5, 6, 7, and 8.

GDPR Processor Obligations - Taylor Wessing, paragraphs 1, 2, 3, 4, 5, 6, 7, and 8.

 The GDPR requires that consent must be freely given, specific, informed and unambiguous1. This means that app developers must provide clear and transparent information about the purposes and legal basis of the data processing, and allow users to choose which types of processing they agree to and which they do not. For example, users should be able to consent separately to different types of cookies, such as functional, analytical or marketing cookies2. Users should also be able to withdraw their consent at any time as easily as they gave it1. Therefore, app design and implementation must take into account these requirements and provide users with granular and user-friendly consent options, rather than relying on pre-ticked boxes, implied consent or default settings3. References: 1 Art. 4 (11) and Art. 7 GDPR – Definitions and Conditions for consent - General Data Protection Regulation (GDPR)2 Guidelines 05/2020 on consent under Regulation 2016/679 - European Data Protection Board3 How To Make Compliant GDPR Consent Forms (With Examples) - Termly.

According to Article 21 of the GDPR, the data subject has the right to object at any time to the processing of his or her personal data for direct marketing purposes, which includes profiling related to such marketing. When the data subject exercises this right, the controller must stop processing the personal data for that purpose, unless it can demonstrate compelling legitimate grounds for the processing that override the interests, rights, and freedoms of the data subject, or for the establishment, exercise, or defense of legal claims. The controller must also inform the data subject of this right before the first communication with him or her, and in a clear and separate manner from other information. The controller must also provide the data subject with a simple and effective way to opt out of receiving direct marketing communications, such as an unsubscribe link or a STOP text message. The controller must respect the data subject’s choice and refrain from sending any further direct marketing messages of the relevant type (e.g., email, phone, post, etc.) to the data subject, unless he or she opts in again. The controller does not need to delete the personal data of the data subject who opts out, unless the data subject also requests the erasure of his or her data under Article 17 of the GDPR, or the data is no longer necessary for the purposes for which it was collected or processed. The controller may also retain some minimal information about the data subject (such as name and email address) to ensure that his or her opt-out request is honored and that he or she is not contacted again for direct marketing purposes. The controller must also ensure that any third parties to whom it has disclosed the personal data of the data subject for direct marketing purposes are informed of the opt-out request and comply with it, unless this proves impossible or involves disproportionate effort. References: Direct marketing rules and exceptions under the GDPR, Direct marketing and privacy and electronic communications, Marketing and advertising: the law: Direct marketing, Direct Marketing - What you need to know about direct marketing

According to Article 46 of the GDPR, in the absence of an adequacy decision by the European Commission, a controller or processor may transfer personal data to a third country or an international organisation only if the controller or processor has provided appropriate safeguards, and on condition that enforceable data subject rights and effective legal remedies for data subjects are available. One of the possible appropriate safeguards is the use of standard data protection clauses adopted by the Commission or by a supervisory authority. However, Article 46(5) states that the possibility for the controller or processor to use standard data protection clauses adopted by the Commission or by a supervisory authority shall not affect the possibility for the controller or processor to rely upon other appropriate safeguards provided for in paragraph 2 of this Article, provided that they ensure that data subjects have enforceable and effective rights as regards the processing of their data. Therefore, in this case, Jackie’s recommendation of requiring UpFinance to notify ProStorage if it receives a government request for personal data UpFinance processes on its behalf prior to disclosing such data is an additional measure that could be considered as an appropriate safeguard, especially since UpFinance implements several data protection measures, including end-to-end encryption, with encryption keys held by the customer, which would ensure a high level of security and confidentiality of the personal data transferred. References:

Article 46 of the GDPR

IAPP CIPP/E Study Guide, page 67

1. A request may be manifestly unfounded or excessive if it has no clear purpose, is clearly frivolous or vexatious, is made repeatedly by the same data subject, or goes beyond what is reasonably necessary to fulfil the data subject’s request2. In such cases, the organisation can either charge a reasonable fee or refuse to act on the request, but it must be able to justify its decision and inform the data subject of the reasons and their right to lodge a complaint with a supervisory authority or a judicial remedy1. The other options are not correct, as they either do not reflect the conditions for charging a fee under the GDPR, or are not relevant to the question. References: Right of access | ICO, Charge for a Data Subject Request GDPR - GDPR Wiki

According to the GDPR, data controllers must report personal data breaches to the supervisory authority without undue delay and, where feasible, not later than 72 hours after having become aware of it (Art 33 of GDPR). However, the notification is not required if the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons (Art 33(1) of GDPR). In this case, TripBliss Inc. could argue that the stolen data was securely erased by Leon before it could be disclosed to anyone else, and therefore the risk of harm to the data subjects was minimal. TripBliss Inc. would have to provide evidence of the secure deletion of the data and the absence of any copies or backups. Alternatively, TripBliss Inc. could also invoke the exception of disproportionate effort to avoid notifying the data subjects directly, but only if they have made a public communication or similar measure to inform them in an equally effective manner (Art 34(3)(b) of GDPR). The other options are not valid defenses, as they do not affect the likelihood of risk to the data subjects. The incident was not caused by a third-party, but by an employee of Techiva, who was acting as a data processor on behalf of TripBliss Inc. As the data controller, TripBliss Inc. is responsible for ensuring that the data processor provides sufficient guarantees to implement appropriate technical and organisational measures to comply with the GDPR (Art 28 of GDPR). The sensitivity of the data categories is not relevant for the notification obligation, as any personal data breach could pose a risk to the data subjects, depending on the circumstances. The GDPR does not provide a threshold for the sensitivity of the data, but rather requires a case-by-case assessment of the potential impact of the breach. References:

GDPR, Art 33, Art 34, Art 28

Free CIPP/E Study Guide, p. 15

European Data Protection Law & Practice, p. 123-124

Personal data breach notification under the GDPR

 According to the Free CIPP/E Study Guide, page 16, “the GDPR provides for a one-stop-shop mechanism, which means that a controller or processor with establishments in several Member States will have only one supervisory authority as its interlocutor, which will act as the lead authority. However, this does not mean that the lead authority has exclusive competence to supervise all processing activities of the controller or processor throughout the EU. The GDPR also allows for the possibility of a relevant and reasoned objection by a concerned supervisory authority, which may trigger the consistency mechanism and the involvement of the European Data Protection Board (EDPB). Moreover, the GDPR recognizes the right of any supervisory authority to adopt urgent measures on its own territory or to commence legal proceedings before a court in its Member State in order to protect the rights and freedoms of data subjects.” Therefore, the lead regulator should accept the Spanish supervisory authority’s notice that it plans to take action regarding Sofia’s complaint, as the GDPR permits non-lead authorities to take action for such complaints, especially when they involve urgent measures or legal proceedings to protect the data subjects’ rights and freedoms. The other options are incorrect, as they do not reflect the GDPR’s provisions on the one-stop-shop mechanism and the cooperation and consistency mechanisms. References:

Free CIPP/E Study Guide, page 16

GDPR, Articles 56, 60, 61, 62, 63, 64, 65 and 66

 Under the GDPR, email marketing requires explicit and unambiguous consent from the recipients, meaning that they must actively agree to receive marketing communications, and the process for obtaining this consent must be clear and transparent. A prior opt-in consent is the most common and reliable way to demonstrate compliance with this requirement, as it involves a positive action from the data subject, such as ticking a box, clicking a button, or filling a form. A pre-checked box, a notice, or an opt-out option are not sufficient to obtain valid consent, as they do not indicate a clear expression of the data subject’s will. However, there is an exception to the consent rule for existing customers, known as the “soft opt-in”. This means that a company can send email marketing messages to its customers without prior consent, if the following conditions are met:

The company obtained the customer’s contact details in the course of a sale or negotiations for a sale of a product or service;

The company only sends marketing messages about its own similar products or services;

The company gives the customer a clear opportunity to opt out of receiving such messages both when first collecting the details and in every subsequent message.

References: GDPR Article 4(11), GDPR Article 6(1)(a), GDPR Article 7, GDPR Recital 32, GDPR Recital 47, GDPR for Marketing: The Definitive Guide for 2023 - SuperOffice, A Guide to GDPR Compliance for Email Marketers in 2023

According to the GDPR, the data subject has the right to obtain from the controller confirmation as to whether or not personal data concerning him or her are being processed, and, where that is the case, access to the personal data and the following information: (a) the purposes of the processing; (b) the categories of personal data concerned; © the recipients or categories of recipients to whom the personal data have been or will be disclosed, in particular recipients in third countries or international organisations; (d) where possible, the envisaged period for which the personal data will be stored, or, if not possible, the criteria used to determine that period; (e) the existence of the right to request from the controller rectification or erasure of personal data or restriction of processing of personal data concerning the data subject or to object to such processing; (f) the right to lodge a complaint with a supervisory authority; (g) where the personal data are not collected from the data subject, any available information as to their source; (h) the existence of automated decision-making, including profiling, referred to in Article 22(1) and (4) and, at least in those cases, meaningful information about the logic involved, as well as the significance and the envisaged consequences of such processing for the data subject1. The data subject also has the right to obtain from the controller without undue delay the rectification of inaccurate personal data concerning him or her2. Therefore, options A, B and D are valid data access requests that ABC Hotel Chain and XYZ Travel Agency have to honor, as they fall within the scope of the right of access and rectification. However, option C is not a valid data access request, as it involves the right to erasure, which is a separate right from the right of access. The right to erasure, also known as the right to be forgotten, entitles the data subject to obtain from the controller the erasure of personal data concerning him or her without undue delay and the controller shall have the obligation to erase personal data without undue delay where one of the following grounds applies: (a) the personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed; (b) the data subject withdraws consent on which the processing is based according to point (a) of Article 6(1), or point (a) of Article 9(2), and where there is no other legal ground for the processing; © the data subject objects to the processing pursuant to Article 21(1) and there are no overriding legitimate grounds for the processing, or the data subject objects to the processing pursuant to Article 21(2); (d) the personal data have been unlawfully processed; (e) the personal data have to be erased for compliance with a legal obligation in Union or Member State law to which the controller is subject; (f) the personal data have been collected in relation to the offer of information society services referred to in Article 8(1)3. However, the right to erasure is not absolute and does not apply where processing is necessary: (a) for exercising the right of freedom of expression and information; (b) for compliance with a legal obligation which requires processing by Union or Member State law to which the controller is subject or for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller; © for reasons of public interest in the area of public health in accordance with points (h) and (i) of Article 9(2) as well as Article 9(3); (d) for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in accordance with Article 89(1) in so far as the right referred to in paragraph 1 is likely to render impossible or seriously impair the achievement of the objectives of that processing; or (e) for the establishment, exercise or defence of legal claims4. In this scenario, Mike’s request to obtain access and erasure of his personal data while keeping his rewards membership is not a valid data access request, as it contradicts the right to erasure. If Mike wants to exercise his right to erasure, he has to withdraw his consent for the processing of his personal data by ABC Hotel Chain and XYZ Travel Agency, which means that he cannot keep his rewards membership, as it is based on the processing of his personal data. Moreover, ABC Hotel Chain and XYZ Travel Agency may have other legal grounds for retaining his personal data, such as compliance with a legal obligation or the establishment, exercise or defence of legal claims. Therefore, option C is the correct answer, as it is the only situation where ABC Hotel Chain and XYZ Travel Agency do not have to honor Mike’s data access request. References: 1: Article 15 of the GDPR; 2: Article 16 of the GDPR; 3: Article 17(1) of the GDPR; 4: Article 17(3) of the GDPR; Free CIPP/E Study Guide, pages 33-35.

According to the WP29 guidance on DPIA1, conducting a single DPIA to address multiple processing operations is allowed when the following conditions are met:

The processing operations present similar high risks, which would result in very similar mitigating measures;

The DPIA is reviewed and updated regularly to take into account any changes or new risks;

The DPIA is complemented by ad hoc assessments where necessary to address more specific issues.

The WP29 guidance cites the example of a railway operator who plans to evaluate the same video surveillance in all the train stations of his company as a case where a single DPIA would be sufficient, provided that the above conditions are met2. The other options do not meet these conditions, as they involve different types of processing operations, different purposes, different data subjects, or different technologies. References:

WP29 guidance on DPIA

WP29 guidance on DPIA, page 16

According to the UK GDPR, the controller and the processor must support the data protection officer in performing the tasks referred to in Article 39 by providing resources necessary to carry out those tasks and access to personal data and processing operations, and to maintain his or her expert knowledge1. The controller and the processor must also ensure that the data protection officer does not receive any instructions regarding the exercise of those tasks and that he or she reports directly to the highest management level of the controller or the processor1. 

 A data protection impact assessment (DPIA) is a process to help identify and minimise the data protection risks of a project that involves personal data, especially when using new technologies or processing that is likely to result in a high risk to individuals1. The UK GDPR requires data controllers to carry out a DPIA before starting such processing and to consult the supervisory authority if the DPIA indicates a high risk that cannot be mitigated1. The UK GDPR also provides some general guidance on the content and methodology of a DPIA, but it does not prescribe a specific format or procedure1. Therefore, to effectively assist Zandelay in conducting their DPIA, it would be helpful to refer to existing DPIA guides published by local supervisory authorities, such as the ICO in the UK or the DPC in Ireland23. These guides offer more detailed and practical advice on how to conduct a DPIA, what to include in it, how to assess and mitigate the risks, and when to consult the authority23. They also provide templates, checklists, examples, and case studies to illustrate the DPIA process23. By following these guides, Zandelay can ensure that their DPIA is comprehensive, consistent, and compliant with the UK GDPR and the relevant national laws.

The other options are not as effective as option C, because:

Option A: Information about DPIAs found in Articles 38 through 40 of the UK GDPR is too general and vague to assist Zandelay in conducting their DPIA. These articles only outline the basic requirements and principles of a DPIA, but do not provide any specific guidance on how to conduct one, what to include in it, or how to assess and mitigate the risks1. Zandelay would need more detailed and practical advice to effectively perform a DPIA.

Option B: Data breach documentation that data controllers are required to maintain is not relevant to conducting a DPIA. A data breach is a security incident that leads to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data1. A data controller must document any data breaches, including the facts, effects, and remedial actions taken, and notify the supervisory authority and the affected individuals without undue delay1. However, a data breach is not the same as a data protection risk, which is the potential for adverse effects on individuals as a result of the processing of their personal data2. A DPIA is a proactive and preventive measure to identify and minimise the data protection risks of a project, not a reactive and corrective measure to deal with the consequences of a data breach2.

Option D: Records of processing activities that data controllers are required to maintain are not sufficient to assist Zandelay in conducting their DPIA. A record of processing activities is a document that contains information about the purposes, categories, recipients, transfers, retention periods, and security measures of the processing of personal data by a data controller or a data processor1. A data controller must maintain a record of processing activities under its responsibility and make it available to the supervisory authority upon request1. However, a record of processing activities is not the same as a DPIA, which is a more in-depth and systematic analysis of the data protection risks and the measures to address them2. A record of processing activities may provide some useful information for a DPIA, such as the nature, scope, context, and purposes of the processing, but it does not cover other aspects, such as the necessity, proportionality, compliance, and impact of the processing2.

https://blog.netwrix.com/2021/02/17/data-protection-impact-assessment/

https://ico.org.uk/for-organisations-2/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/accountability-and-governance/data-protection-impact-assessments/

Article 82 of the GDPR introduces a right to compensation for damage caused as a result of an infringement of the GDPR1. Article 82 (1) states that any person who has suffered material or non-material damage as a result of an infringement of the GDPR shall have the right to receive compensation from the controller or processor for the damage suffered1. Article 82 (2) states that any controller involved in processing shall be liable for the damage caused by processing which infringes the GDPR1. A processor shall be liable for the damage caused by processing only where it has not complied with obligations of the GDPR specifically directed to processors or where it has acted outside or contrary to lawful instructions of the controller1. Article 82 (3) states that a controller or processor shall be exempt from liability under paragraph 2 if it proves that it is not in any way responsible for the event giving rise to the damage1. In this case, Jack is liable for the damage caused by the data breach, as he violated the GDPR by posting the patient’s name and health information, along with disparaging comments, on a social media website. This constitutes an infringement of the GDPR, as it violates the principles of lawfulness, fairness, and transparency (Article 5 (1) (a)), purpose limitation (Article 5 (1) (b)), data minimisation (Article 5 (1) ©), accuracy (Article 5 (1) (d)), integrity and confidentiality (Article 5 (1) (f)), and the rights of the data subject (Articles 12-23)1. The pharmaceutical company is not liable for the damage caused by the data breach, as it can prove that it is not in any way responsible for the event giving rise to the damage. The company provided privacy training to Jack, informed him of the privacy policy, obtained his consent, and dismissed him as soon as the breach was discovered. Therefore, the company complied with the obligations of the GDPR, such as the accountability principle (Article 5 (2)), the data protection by design and by default principle (Article 25), the security of processing principle (Article 32), and the notification of a personal data breach to the supervisory authority principle (Article 33)1. Therefore, option D is the correct answer. References: Art. 82 GDPR – Right to compensation and liability, Article 82 GDPR - GDPRhub

 A layered notice is a privacy notice designed to respond to problems with excessively long notices1. A short notice — the top layer — provides a user with the key elements of the privacy notice, such as the identity of the organisation, the purposes of the processing, and the rights of the data subjects2. The full notice — the bottom layer — covers all the intricacies in full, such as the lawful basis, the retention periods, and the recipients of the personal data2. The ICO recommends using a layered approach to deliver privacy information in a concise, transparent, intelligible, and easily accessible way, as required by the UK GDPR3. A layered notice allows data subjects to access the information they need at the appropriate level of detail and helps organisations to comply with the right to be informed23. References: 2

The European model for data protection is best described as comprehensive, because it covers all sectors and types of data processing, and applies to any organization that targets or collects data related to people in the EU. The GDPR is the main legal instrument of this model, and it establishes a set of principles, rights, and obligations for data protection, as well as a harmonized framework for enforcement and cooperation among EU member states and data protection authorities. The GDPR also aims to ensure consistency with other EU laws and policies, such as the ePrivacy Directive, the Charter of Fundamental Rights, and the European Data Strategy. The European model for data protection is based on the recognition of data protection as a fundamental right and a public interest, and it reflects the EU’s values and objectives of promoting human dignity, democracy, and the rule of law. References:

Data protection in the EU, section “Legislation”

What is GDPR, the EU’s new data protection law?, section “What is the GDPR?”

European Data Protection, Third Edition, page 1, section “Introduction”

European Data Protection: Law and Practice, page 1, section “Introduction”

According to the GDPR, consent is one of the lawful bases for processing personal data1. Consent means any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her2. Therefore, consent must be specific to each purpose of processing and cannot be bundled with other purposes3. If a company wants to use personal data for a new purpose that is not compatible with the original purpose for which consent was given, it must obtain a new consent from the data subjects for the new processing4. Simply informing the data subjects of the new purpose or updating the privacy notice is not sufficient, as it does not imply the data subject’s agreement to the new processing. Proceeding with the new processing without obtaining a new consent would be unlawful and could result in fines and sanctions5. References:

Free CIPP/E Study Guide, page 23, section 4.1.1

GDPR, Article 4 (11)

GDPR, Recital 32

GDPR, Article 6 (4)

GDPR, Article 83 (5) (a)

According to Article 32 of the GDPR, the controller and the processor must implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk of the processing, including the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident1. A personal data breach is defined as a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed2. Therefore, a power outage that results in the loss of availability of customer data for six hours is considered a personal data breach under the GDPR.

Based on the WP 29’s February, 2018 guidance, which was endorsed by the European Data Protection Board, company Z should document the loss of availability to demonstrate accountability3. The guidance states that controllers must document any personal data breaches, comprising the facts relating to the personal data breach, its effects and the remedial action taken, regardless of whether the breach needs to be notified to the supervisory authority or the data subjects. This documentation must enable the supervisory authority to verify compliance with the GDPR and must be made available to the supervisory authority on request4.

The other options (A, C, and D) are not required by the GDPR or the guidance, although they may be advisable or beneficial depending on the circumstances. Option A is not mandatory, as the GDPR only requires the controller to communicate the personal data breach to the data subject when the breach is likely to result in a high risk to the rights and freedoms of natural persons5. A temporary loss of availability may not pose such a high risk, unless it affects the data subject’s essential services or activities. Option C is also not obligatory, as the GDPR only requires the controller to notify the supervisory authority of the personal data breach within 72 hours unless the breach is unlikely to result in a risk to the rights and freedoms of natural persons6. A short-term loss of availability may not entail such a risk, unless it affects a large number of data subjects or sensitive data. Option D is not specified by the GDPR or the guidance, although it may be a good practice to conduct a thorough audit of all security systems after a personal data breach to identify and address any vulnerabilities or weaknesses that may have contributed to the incident or may lead to future incidents. References:

1: Article 32 of the GDPR

2: Article 4 (12) of the GDPR

3: Endorsed WP29 Guidelines

4: Article 33 (5) of the GDPR

5: Article 34 (1) of the GDPR

6: Article 33 (1) of the GDPR

7: Guidelines on Personal data breach notification under Regulation 2016/679, WP250 rev.01

8: Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation)

9: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32016R0679

The GDPR allows for derogations for specific situations when a transfer of personal data to a third country or an international organization cannot be based on an adequacy decision, appropriate safeguards, or binding corporate rules1. However, these derogations are exceptions to the general rule and should not become the norm. The EDPB confirmed that derogations should only be used as a last resort and when interpreted restrictively, taking into account the nature of the data, the purpose and duration of the processing, the country of origin and destination, and the rights and freedoms of data subjects23. The EDPB also stressed that the data exporter must assess the level of protection in the third country and ensure that the transfer does not undermine the essence of the fundamental rights and freedoms of data subjects23. References: 1: Article 49 of the GDPR 2: Guidelines 2/2018 on derogations of Article 49 under Regulation 2016/679 3: A guide to international transfers | ICO

According to the definition of direct marketing in the context of data protection law, it is personal data processed to communicate a marketing or advertising message. This includes messages from commercial organisations, as well as from charities and political organisations. Therefore, option D is an example of direct marketing that would be subject to European data protection laws, as it involves sending a marketing message by SMS to an individual. The other options are not examples of direct marketing, as they do not involve marketing or advertising messages, but rather information or service messages that are not intended to promote any product or service. References:

[IAPP article on direct marketing (EU specific)]

Lexology article on direct marketing requirements under the GDPR

According to Article 36 of the GDPR, when a controller intends to process personal data that would result in a high risk to the rights and freedoms of data subjects, and a data protection impact assessment under Article 35 indicates that the risk cannot be mitigated by the controller, the controller must consult the supervisory authority before processing. The purpose of this prior consultation is to seek the advice of the supervisory authority on whether the processing complies with the GDPR and what measures can be taken to ensure compliance. During the prior consultation, the controller must provide the supervisory authority with the following information:

the respective responsibilities of the controller, joint controllers and processors involved in the processing, in particular for processing within a group of undertakings;

the purposes and means of the intended processing;

the measures and safeguards provided to protect the rights and freedoms of data subjects pursuant to the GDPR;

the contact details of the data protection officer, if any;

the data protection impact assessment provided for in Article 35; and

any other information requested by the supervisory authority.

Therefore, the correct answer is B. An explanation of the purposes and means of the intended processing. This information is essential for the supervisory authority to understand the nature and scope of the processing and to assess its compliance with the GDPR. The other options are not required by Article 36, although they may be relevant for other aspects of the GDPR, such as the data protection by design and by default principle (A), the lawfulness of processing ©, or the designation of the data protection officer (D). References:

Article 36 of the GDPR, which regulates the prior consultation with the supervisory authority.

ICO guidance, which explains the process and requirements of the prior consultation.

EDPB guidelines, which provide further guidance on the criteria and procedure of the prior consultation.

According to Article 46(2)© of the GDPR, standard contractual clauses adopted by a supervisory authority and approved by the Commission pursuant to the examination procedure referred to in Article 93(2) can be used as a legal basis for data transfers to third countries12. This means that, in addition to the European Commission, national data protection authorities can adopt standard contractual clauses, provided that they meet the conditions and requirements set out in the GDPR and obtain the approval of the Commission. The other options are not correct, as approved data controllers, the Council of the European Union and the European Data Protection Supervisor do not have the power to adopt standard contractual clauses under the GDPR. References: CIPP/E Certification - International Association of Privacy Professionals, Free CIPP/E Study Guide - International Association of Privacy Professionals, GDPR - EUR-Lex, Standard Contractual Clauses (SCC) - European Commission

I hope this helps. If you have any other questions, please let me know. ????.

According to the CIPP/E study guide, data controllers should use the least intrusive means of verifying the identity of data subjects who make requests under the GDPR. Asking for a copy of an ID document or a bank account statement may be disproportionate and excessive, as they contain more personal data than necessary for authentication. Asking for the bank account number may not be sufficient, as it may be easily obtained by third parties. Therefore, the most appropriate way to confirm the identity of the customer is to ask additional security questions that only the customer would know, such as the date of the last transaction, the amount of the last deposit, or the name of the beneficiary of a recurring payment.

References: CIPP/E Study Guide, page 28; CIPP/E Textbook, page 136.

A Data Protection Impact Assessment (DPIA) is required under Article 35 of the GDPR when data processing is likely to result in a high risk to individuals' rights and freedoms. This includes processing involving new technologies, systematic monitoring, or the large-scale processing of sensitive data​.

When should a DPIA be conducted?

Before implementing a new high-risk processing activity (e.g., a biometric access system).

Whenever a significant change in risk occurs (e.g., security updates, regulatory changes, new threats).

Regularly to reassess and mitigate emerging risks​.

Why is B the correct answer?

DPIAs are not a one-time process; they must be reviewed periodically to assess new risks​.

Why are other answers incorrect?

A (After the complaint) → A DPIA is a proactive measure, not something done only after a complaint.

C (At the end of the season) → GDPR does not require assessments to be tied to event cycles.

D (After regulatory notification) → DPIAs must be done before investigations, not as a response.

Conclusion: DPIAs should be conducted periodically when new risks arise, making B the correct answer​.

Section: (none)

Explanation

The GDPR provides more latitude for a company to process data beyond its original collection purpose when the data has been pseudonymized, which means that the data can no longer be attributed to a specific data subject without the use of additional information. Pseudonymization is a technique that reduces the linkability of personal data with the data subject, and enhances the security and privacy of the data processing. According to the GDPR, pseudonymization is one of the measures that can help the company to implement the principles of data protection by design and by default, and to demonstrate compliance with the GDPR obligations. Moreover, the GDPR states that the further processing of pseudonymized data for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes is not considered to be incompatible with the initial purposes, provided that appropriate safeguards are in place to protect the rights and freedoms of the data subjects. Therefore, pseudonymization can enable the company to use the data for other purposes that are beneficial for society or for innovation, without compromising the privacy of the individuals. References:

GDPR, Article 4 (5), Article 5 (1) (b), Article 6 (4) (e), Article 25, Article 32 (1) (a), Article 40 (2) (d), Article 89

Free CIPP/E Study Guide, page 17, section 2.4.1

CIPP/E Certification, page 12, section 1.1.3

Cipp-e Study guides, Class notes & Summaries, document “CIPP/E Exam Summary 2023”, page 45, section 2.4.1

[Pseudonymisation techniques and best practices]

 According to the Free CIPP/E Study Guide, page 14, “if the DPIA indicates that the processing would result in a high risk in the absence of measures taken by the controller to mitigate the risk, the controller shall consult the supervisory authority prior to the processing.” This means that the controller must seek the advice of the supervisory authority when the DPIA identifies high risks that cannot be sufficiently reduced by the controller’s own measures. The other options are not necessarily cases where the consultation is required, although they may trigger other obligations under the GDPR, such as obtaining a valid legal basis, providing adequate safeguards, or informing the data subjects. References:

Free CIPP/E Study Guide, page 14

GDPR, Article 36

According to Articles 33 and 34 of the GDPR, the Gummy Bear Company potentially violated its breach notification obligations by allowing Sam to copy and use the personal data of its customers in Ireland without their consent or authorization. A personal data breach is defined as a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, personal data transmitted, stored or otherwise processed (Article 4(12)). The Gummy Bear Company, as a data controller, is required to notify the competent supervisory authority of the personal data breach without undue delay and, where feasible, not later than 72 hours after having become aware of it, unless the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons (Article 33(1)). The notification should include the nature of the personal data breach, the categories and approximate number of data subjects and personal data records concerned, the likely consequences of the personal data breach, and the measures taken or proposed to address the personal data breach (Article 33(3)). The Gummy Bear Company is also required to communicate the personal data breach to the affected data subjects without undue delay, if the personal data breach is likely to result in a high risk to the rights and freedoms of natural persons (Article 34(1)). The communication should describe the nature of the personal data breach and the measures taken or proposed to address the personal data breach (Article 34(2)).

Therefore, the Gummy Bear Company should analyze and evaluate all of its breach notification obligations, taking into account the nature and circumstances of the personal data breach, the type and sensitivity of the personal data involved, the potential impact and harm to the data subjects, and the applicable laws and regulations of the jurisdictions where the data subjects reside. The Gummy Bear Company should also document the personal data breach and the remedial actions taken, and cooperate with the supervisory authorities and the data subjects as required by the GDPR.

References: GDPR, Articles 4(12), 33, 341; EDPB Guidelines 01/2021 on Examples regarding Data Breach Notification2

 According to Article 42 of the GDPR, the Commission may approve certification mechanisms, seals and marks for the purpose of demonstrating the existence of appropriate safeguards for personal data transfers to third countries or international organisations. These certification mechanisms, seals and marks are voluntary and transparent, and are issued by accredited certification bodies or by the competent supervisory authorities. They are subject to the general provisions on certification in Articles 42 and 43 of the GDPR. They are intended to enhance the trust of data subjects and facilitate the free flow of personal data within the Union and beyond. They are also subject to periodic review and withdrawal or suspension if the conditions for certification are not or are no longer met. References:

Article 42 of the GDPR

European Data Protection Law & Practice textbook, Chapter 8: Transfers of Personal Data to Third Countries, Section 8.3: Appropriate Safeguards, Subsection 8.3.4: Certification Mechanisms, Seals and Marks

Guidelines 1/2018 on certification and identifying certification criteria in accordance with Articles 42 and 43 of the Regulation

 According to the GDPR, the lead supervisory authority (LSA) is the one located in the EU member state where the controller or processor has its main establishment or single establishment. The main establishment is the place where the decisions on the purposes and means of the processing of personal data are taken. In this case, the SaaS service was defined and implemented by the Polish establishment, so the decisions on the processing of personal data for this service are taken in Poland. Therefore, the LSA for the SaaS service is the supervisory authority of the Republic of Poland.

References:

GDPR Article 4(16): Definition of main establishment

GDPR Article 56: Competence of the lead supervisory authority

GDPR Recital 36: Determination of the main establishment

IAPP CIPP/E Study Guide, Chapter 5, Section 5.1: Lead Supervisory Authority

 A dynamic IP address is a unique numerical label for a device on the internet that changes every time the device connects to the internet. A dynamic IP address by itself is not personal data, as it does not directly identify the person who owns or uses the device. However, a dynamic IP address can become personal data when it is combined with other data held by the controller, such as the web pages accessed by the device, the time and duration of the visit, the location of the device, or the user’s preferences and interests. In this case, the controller can use the additional data to identify the data subject, either directly or indirectly, by linking the dynamic IP address to a specific person or a profile. This was confirmed by the Court of Justice of the European Union (CJEU) in the case of Breyer v Bundesrepublik Deutschland, where the CJEU ruled that a dynamic IP address registered by a website provider constitutes personal data in relation to that provider, where the latter has the legal means to obtain the identity of the data subject from the internet service provider (ISP) that assigned the dynamic IP address. Therefore, option B is the correct answer. References: Directive 95/46/EC, Directive 2002/58/EC, Breyer v Bundesrepublik Deutschland, Case C-582/14, Dynamic IP Addresses can be Personal Data

According to the European Data Protection Law & Practice textbook, page 326, “the CJEU held that the search engine operator is obliged to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages, published by third parties and containing information relating to that person, also in a case where that name or information is not erased beforehand or simultaneously from those web pages, and even, as the case may be, when its publication in itself on those pages is lawful.” However, the CJEU also stated that “the operator of the search engine as the person responsible for that processing must, at the latest on the occasion of the erasure from its list of results, disclose to the operator of the web page containing that information the fact that that web page will no longer appear in the search engine’s results following a search made on the basis of the data subject’s name.” Therefore, SearchCo must notify the newspaper that it is delisting the article, as part of its obligation to respect the data subject’s right to be forgotten. References:

European Data Protection Law & Practice, page 326

CJEU Judgment in Case C-131/12 Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González, paragraphs 88 and 93

 According to the GDPR, data controllers must respond to a data access request (also known as a subject access request or SAR) without undue delay and in any event within one month of receipt of the request. This time limit can be extended by a further two months if the request is complex or if the controller receives a number of requests from the same individual. However, the controller must still inform the individual within one month of receipt of the request and explain why the extension is necessary. The time limit is calculated from the day after the request is received (whether it is a working day or not) until the corresponding calendar date in the next month. If there is no corresponding calendar date, the deadline is the last day of the next month. If the deadline falls on a weekend or public holiday, the response must be provided on the next working day. References:

GDPR, Article 12(3)

ICO, Right of access1

ICO, Time limits for responding to data protection rights requests2

According to the E-Commerce Directive 2000/31/EC, the place of establishment for a company providing services via an Internet website is the place where the service provider effectively pursues an economic activity through a fixed establishment for an indefinite period of time. The presence and use of the technical means and technologies required to provide the service do not, in themselves, constitute an establishment of the provider. The place of establishment is determined by the place where the decisions about processing are made, not by the place where the technology supporting the website is located, where the website is accessed, or where the customer’s Internet service provider is located. This is confirmed by the GDPR, which applies to the processing of personal data in the context of the activities of an establishment of a controller or a processor in the EU, regardless of whether the processing takes place in the EU or not. References:

E-Commerce Directive 2000/31/EC, Article 2(a), Recital 191

GDPR, Article 3(1)2

 According to the UK GDPR, the data subject has the right to object, on grounds relating to his or her particular situation, to the processing of personal data concerning him or her which is based on point (e) or (f) of Article 6(1), including profiling based on those provisions1. The controller must stop the processing unless it demonstrates compelling legitimate grounds for the processing which override the interests, rights and freedoms of the data subject or for the establishment, exercise or defence of legal claims1. The WP 29 Guidelines on Automated individual decision-making and Profiling provide some guidance on how to assess the existence of such compelling legitimate grounds2. The controller needs to carry out an exercise that weighs the interests of the controller and the basis for the data subject’s objection, consider the impact of the profiling on the data subject’s interest, rights and freedoms, and consider the importance of the profiling to their particular objective2. However, the controller does not need to demonstrate that the profiling is for the purposes of direct marketing, as this is a separate ground for objection under Article 21(2) of the UK GDPR, which gives the data subject an absolute right to object to such processing13. Therefore, option C is the correct answer, as it is not required by the controller to demonstrate that it has compelling legitimate grounds for profiling. References: 132

https://gdpr.eu/article-21-right-to-object/ https://ico.org.uk/for-organisations-2/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/individual-rights/right-to-object/

The “soft opt-in” rule is an exception to the general requirement of obtaining consent before sending electronic mail marketing to individuals. It applies when the following conditions are met12:

the sender has obtained the contact details of the recipient in the context of the sale or negotiations for the sale of a product or service to that recipient;

the sender only sends direct marketing relating to its own similar products or services; and

the recipient has been given a simple opportunity to refuse or opt out of the marketing, both when the details were initially collected and in every subsequent message.

The option B matches these conditions, as it implies that the individual has shown an interest in buying a product from the sender, and that the sender can use the individual’s details to send marketing about similar products, as long as the individual can easily opt out. The other options do not qualify for the “soft opt-in” rule, as they either involve no consent, no prior relationship, or no opt-out mechanism. References: Electronic mail marketing | ICO, Direct marketing rules and exceptions under the GDPR

According to the GDPR, personal data must be collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes1. This means that data controllers must inform data subjects about the purposes of data processing and obtain their consent or another lawful basis for any new or different purposes2.

In the scenario, Brady transferred his customers’ personal data to Hermes Designs, a third-party contractor, to fulfill a requested service. However, Hermes Designs used the data for a new purpose that was not disclosed to the customers: creating sample customized banner advertisements and conducting direct marketing. This is a violation of the purpose limitation principle and could expose Brady to legal risks and customer complaints.

Therefore, Brady should be concerned with Hermes Designs’ handling of customer personal data and take appropriate measures to ensure compliance with the GDPR.

I hope this helps. If you have any other questions, please feel free to ask. ????

1: Article 5(1)(b) of the GDPR 2: Article 6(4) of the GDPR

This is not a common characteristic of cloud-computing services, as the supplier usually does not assume the vendor’s business risk. In fact, the supplier often limits its liability for data breaches or losses, and the vendor remains responsible for complying with data protection laws and regulations. The other options are common characteristics of cloud-computing services, as they reflect the nature of cloud computing as a flexible, scalable, and cost-effective way of processing data, but also pose challenges for data protection and security. References:

Free CIPP/E Study Guide, page 17, section 2.3.2

CIPP/E Certification, page 12, section 2.3.2

Cipp-e Study guides, Class notes & Summaries, page 23, section 2.3.2

 According to Article 9 of the GDPR, special category data is personal data that needs more protection because it is sensitive. The GDPR defines 10 types of personal data as special categories, which are:

personal data revealing racial or ethnic origin;

personal data revealing political opinions;

personal data revealing religious or philosophical beliefs;

personal data revealing trade union membership;

genetic data;

biometric data (where used for identification purposes);

data concerning health;

data concerning a person’s sex life; and

data concerning a person’s sexual orientation.

Among the answer choices, only option B falls under one of these categories, as trade union membership is considered to reveal political opinions or beliefs. Option A, C and D are not considered as special category data, as they do not reveal any sensitive information about the data subject. However, they are still subject to the general principles and rules of the GDPR, such as lawfulness, fairness, transparency, accuracy, security, etc. References:

Special category data | ICO

Art. 9 GDPR Processing of special categories of personal data

Special Categories of Data - International Association of Privacy Professionals

One of the main differences between a Regulation and a Directive in the EU law is that a Regulation is directly applicable and binding in all EU member states, without the need for national implementing measures, while a Directive sets out the objectives and principles that the member states must achieve, but leaves them the choice of form and methods to transpose it into their national laws. Therefore, by taking the form of a Regulation, the GDPR aims to harmonize and unify the data protection rules across the EU, and to ensure a consistent implementation and enforcement of the data protection laws throughout the EU. The other aspects of the GDPR listed in the question, such as the one-stop shop mechanism, the mandatory notification of large-scale data breaches, and the mandatory appointment of a data protection officer, are also important features of the GDPR, but they do not have the same impact on the consistency of the data protection laws as the form of a Regulation.

References: Difference between A Regulation And Directive (European Law)1; EUR-Lex - 310401_2 - EN - EUR-Lex2; EU GDPR vs. European Data Protection Directive 95/46/EC - Advisera3; Difference between GDPR and Data Protection Directive - Profolus

 The ePrivacy Directive is a European Union (EU) directive that aims to protect the confidentiality of electronic communications and prevent their indiscriminate interception or monitoring. It was adopted in 2002 and amended in 2009. It applies to all providers of electronic communication services, such as internet service providers, mobile network operators, and online platforms12.

One of the main objectives of the ePrivacy Directive is to ensure that the retention of communications traffic data for law enforcement purposes is subject to strict conditions and safeguards. Communications traffic data refers to any information relating to the transmission or routing of electronic communications, such as IP addresses, timestamps, and metadata3. Such data can be used by competent national authorities for the prevention, investigation, detection or prosecution of criminal offences and safeguarding national security4.

However, the ePrivacy Directive does not allow individual EU member states to engage in such data retention without harmonizing their rules. Article 6(1)(b) of the directive states that “Member States shall ensure that any measures taken by them in relation to the retention of traffic data are consistent with this Directive”. Therefore, each EU member state must adopt a national law that complies with the requirements and limitations set by the directive12.

The Data Retention Directive (DRD) was a previous EU directive that aimed to establish a common framework for the retention of communications traffic data for law enforcement purposes across all EU member states. It was adopted in 2006 and amended in 2010. However, it was annulled by the Court of Justice of the European Union (CJEU) in 2014 on procedural grounds. The CJEU found that some provisions of the DRD were inconsistent with other EU directives and principles, such as Article 8(2) of the Charter of Fundamental Rights (CFR), which protects individuals from arbitrary interference with their privacy56.

The GDPR is a new EU regulation that implements some aspects of the DRD into national law through its provisions on processing personal data. However, it does not address directly the issue of communications traffic data retention for law enforcement purposes. Instead, it requires providers to implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk involved in processing personal data. These measures include encryption, pseudonymisation, access control, and accountability7 . The GDPR also grants individuals certain rights regarding their personal data, such as access, rectification, erasure, portability, and objection7 .

Therefore, under current EU law, there is no single legal basis for retaining communications traffic data for law enforcement purposes across all EU member states. Each member state must adopt its own national law that respects the principles and limitations established by the ePrivacy Directive.

References:

ePrivacy Directive

ePrivacy Regulation

What is Communications Traffic Data?

How is Communications Traffic Data Retained?

Data Retention Directive

Data Retention Directive annulled by CJEU

General Data Protection Regulation

What are your rights regarding your personal data?

Under the GDPR, the lead supervisory authority is determined by where the main establishment related to the processing activity is located.

In this case, even though the company's headquarters is in Germany, the SaaS application was specifically defined and implemented by the Polish establishment. This indicates that the Polish establishment has the primary role in determining the purposes and means of processing personal data related to that SaaS service. Therefore, the supervisory authority of Poland would be the lead supervisory authority for this specific processing activity.

References:

GDPR Article 56 - Competence of the lead supervisory authority

IAPP CIPP/E textbook, Chapter 3: EU General Data Protection Regulation (specifically, sections on One-Stop Shop mechanism and lead supervisory authority)

The ECHR and the CJEU are part of two different legal systems: the Council of Europe and the European Union, respectively. The ECHR is a treaty that guarantees human rights and fundamental freedoms to individuals within the jurisdiction of its 47 member states. The CJEU is the judicial branch of the EU that ensures the uniform interpretation and application of EU law within its 27 member states. The ECHR can only hear complaints from individuals or states alleging violations of the rights enshrined in the convention, and it can only issue judgments that are binding on the respondent state. The CJEU, on the other hand, can hear cases from individuals, states, EU institutions, or national courts on any matter of EU law, and it can issue rulings that are binding on all EU member states and institutions. The CJEU can also impose sanctions or penalties on states that fail to comply with its judgments or EU law in general. Therefore, the CJEU has more power and authority to enforce EU law than the ECHR has to enforce human rights law. References: CIPP/E Certification, ECHR and the CJEU, The UK, the EU and a British Bill of Rights

According to the GDPR, a data protection impact assessment (DPIA) is a process to help identify and minimize the data protection risks of a project. A DPIA is required when the processing is likely to result in a high risk to the rights and freedoms of natural persons, taking into account the nature, scope, context and purposes of the processing. The GDPR provides a list of examples of processing operations that require a DPIA, such as:

Systematic and extensive evaluation of personal aspects relating to natural persons which is based on automated processing, including profiling, and on which decisions are based that produce legal effects concerning the natural person or similarly significantly affect the natural person.

Processing on a large scale of special categories of data or of personal data relating to criminal convictions and offences.

Systematic monitoring of a publicly accessible area on a large scale.

Therefore, an example of a scenario where a controller is most likely required to undertake a DPIA is when personal data is being collected and combined with other personal data to profile the creditworthiness of individuals, as this involves a systematic and extensive evaluation of personal aspects based on automated processing and profiling, and may have significant effects on the individuals. The other scenarios are not necessarily indicative of a high risk to the rights and freedoms of natural persons, and do not fall under the examples of processing operations that require a DPIA provided by the GDPR. References: Free CIPP/E Study Guide, page 37; CIPP/E Certification, page 18; GDPR, Article 35, Recital 91.

The EDPB’s Guidelines 4/2019 on Article 25 Data Protection by Design and by Default provide guidance on how to implement the requirements of Article 25 of the GDPR, which obliges controllers to design and implement appropriate technical and organisational measures and necessary safeguards to ensure that the processing of personal data complies with the data protection principles and protects the rights and freedoms of data subjects. The guidelines also explain how to apply the concept of data protection by default, which means that by default, only personal data that are necessary for each specific purpose of the processing are processed.

The guidelines do not mention data ownership allocation as a practice that follows from the principles relating to the processing of personal data under EU data protection law. Data ownership allocation is not a concept that is recognised or defined by the GDPR or the EDPB. Data ownership allocation refers to the idea that data subjects or controllers have some form of property rights over the personal data that they provide or process. However, the GDPR does not grant such rights, but rather establishes a set of rules and obligations for the processing of personal data, based on the notion of accountability and responsibility of the controllers and processors. The GDPR also recognises the rights and freedoms of data subjects, such as the right of access, rectification, erasure, restriction, portability, objection and not to be subject to automated decision-making, which are not dependent on the ownership of the personal data, but on the fact that the personal data relate to them.

The other practices listed in the question, namely access control management, frequent pseudonymization key rotation and error propagation avoidance along the processing chain, are examples of practices that follow from the principles relating to the processing of personal data under EU data protection law, as explained in the guidelines. Access control management follows from the principle of integrity and confidentiality, which requires that personal data are processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage. Frequent pseudonymization key rotation follows from the principle of data minimisation, which requires that personal data are adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed. Error propagation avoidance along the processing chain follows from the principle of accuracy, which requires that personal data are accurate and, where necessary, kept up to date.

References:

GDPR, Articles 5, 6, 7, 8, 9, 15, 16, 17, 18, 19, 20, 21, 22 and 25.

EDPB Guidelines 4/2019 on Article 25 Data Protection by Design and by Default, pages 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27 and 28.

According to the GDPR, personal data means any information relating to an identified or identifiable natural person1. Body temperature is a type of personal data that can reveal information about an individual’s health and therefore constitutes special category data under Article 9 of the GDPR2. However, not every activity involving personal data falls within the scope of the GDPR. The GDPR applies only to the processing of personal data wholly or partly by automated means or to the processing other than by automated means of personal data which form part of a filing system or are intended to form part of a filing system3.

In this scenario, the organization conducts body temperature checks as a part of COVID-19 monitoring. Body temperature is measured manually and is not followed by registration, documentation or other processing of an individual’s personal data. This means that the organization does not use any automated means to collect, store, or process the body temperature data, nor does it create or intend to create a filing system that contains such data. Therefore, this practice does not involve any processing of personal data within the meaning of the GDPR and is not subject to its rules and obligations.

The other options are incorrect because:

A. Body temperature is considered personal data, as it can be linked to an identifiable natural person and reveal information about their health2.

C. Body temperature is not considered pseudonymous data, as it is not processed in a way that the data can no longer be attributed to a specific data subject without the use of additional information4.

D. The practice is not for the purpose of alleviating extreme risks to public health, as it is not based on any legal obligation, public interest, or vital interest that would justify the processing of special category data under Article 9 of the GDPR5.

References: 1 Article 4(1) of the GDPR2 Policy Brief: Location Data Under Existing Privacy Laws | FPF23 Article 2(1) of the GDPR4 Article 4(5) of the GDPR5 Article 9(2) of the GDPR.

 According to the European Data Protection Board, the principles relating to the processing of personal data under EU data protection law are: lawfulness, fairness and transparency; purpose limitation; data minimization; accuracy; storage limitation; integrity and confidentiality; and accountability1. These principles imply certain concepts or practices that data controllers and processors should follow, such as access control management, frequent pseudonymization key rotation, and error propagation avoidance along the processing chain2. However, data ownership allocation is not a concept or practice that follows from these principles, as the GDPR does not recognize the notion of data ownership by either the data subject or the data controller3. Therefore, option A is the correct answer. References:

Data protection basics

Guidelines 2/2019 on the processing of personal data under Article 6(1)(b) GDPR in the context of the provision of online services to data subjects

CIPP/E Study Guide, page 11

According to the General Data Protection Regulation (GDPR), a data processor is a natural or legal person, agency, public authority, or any other body who processes personal data on behalf of a data controller. A data controller is a natural or legal person, agency, public authority, or any other body who, alone or jointly with others, determines the purposes and means of the processing of personal data. The GDPR imposes specific obligations and responsibilities on both data controllers and data processors, and requires them to enter into a written contract or other legal act that sets out the subject matter, duration, nature, and purpose of the processing, as well as the obligations and rights of the data controller.

In this scenario, BHealthy is the data controller, as it determines the purpose and means of collecting and sharing its customer information with Natural Insight. Natural Insight is the data processor, as it processes the customer information on behalf of BHealthy for the purpose of determining the price point for BHealthy’s new sunscreens. However, Natural Insight also intends to use the customer information for its own purpose of improving its algorithms, which may not be aligned with BHealthy’s purpose or instructions. This may constitute a breach of the data processing contract and the GDPR, as the data processor must only process the personal data on documented instructions from the data controller, unless required to do so by EU or member state law (Article 28(3)(a) of the GDPR).

Therefore, the only case in which Natural Insight’s use of BHealthy’s data for improvement of its algorithms would be considered data processor activity is if Natural Insight receives express contractual instructions from BHealthy to use its data for improving its algorithms. This would mean that BHealthy has given its consent and authorization for Natural Insight to process the data for that specific purpose, and that Natural Insight is acting in accordance with BHealthy’s instructions. In this case, Natural Insight would still be bound by the data processing contract and the GDPR, and would have to comply with the other obligations and requirements of a data processor, such as ensuring the security of the data, respecting the conditions for engaging another processor, assisting the data controller in ensuring compliance with the GDPR, and deleting or returning the data to the data controller after the end of the service.

The other options are not valid cases for data processor activity, as they do not involve the data controller’s instructions or consent. If Natural Insight uses BHealthy’s data for improving price point predictions only for BHealthy, it may still be processing the data for a different purpose than the one for which it was collected and shared, and without BHealthy’s knowledge or approval. If Natural Insight agrees to be fully liable for its use of BHealthy’s customer information in its product improvement activities, it may still be violating the data processing contract and the GDPR, as it is not acting on behalf of the data controller, but for its own benefit. If Natural Insight satisfies the transparency requirement by notifying BHealthy’s customers of its plans to use their information for its product improvement activities, it may still be infringing the data controller’s rights and obligations, as it is not the data controller’s role to inform the data subjects of the processing activities, and it may not have a lawful basis for processing the data for its own purpose.

References:

GDPR

Data Controllers and Processors - GDPR EU

Who does the UK GDPR apply to? | ICO

What Activities Count as Processing Under the GDPR?

What constitutes data processing? - European Commission

Article 9 of the GDPR prohibits the processing of special category data, which includes biometric data for the purpose of uniquely identifying a natural person1. However, there are 10 exceptions to this general prohibition, usually referred to as ‘conditions for processing special category data’2. These are:

(a) Explicit consent

(b) Employment, social security and social protection (if authorised by law)

© Vital interests

(d) Not-for-profit bodies

(e) Made public by the data subject

(f) Legal claims and judicial acts

(g) Substantial public interest conditions

(h) Health or social care

(i) Public health

(j) Archiving, research and statistics

Option A is not one of these exceptions, and therefore it is not a valid reason to process biometric data under Article 9. Option B, C and D are all valid exceptions, as they correspond to conditions ©, (f) and (a) respectively. Therefore, the correct answer is A.

References:

4: Art. 9 GDPR Processing of special categories of personal data

6: What are the rules on special category data? | ICO

The GDPR defines profiling as any form of automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects relating to a natural person, in particular to analyse or predict aspects concerning that natural person’s performance at work, economic situation, health, personal preferences, interests, reliability, behaviour, location or movements12. Therefore, the relevant factors when determining if a processing activity would be considered profiling are:

whether the processing involves data that is considered personal data;

whether the processing of the data is done through automated means; and

whether the processing is used to predict the behavior of data subjects.

The identity of the processor, whether it is the controller or a third-party vendor, is not relevant for the definition of profiling. However, it may have implications for the accountability and responsibility of the parties involved, as well as the data protection rights of the data subjects34. References: CIPP/E Certification - International Association of Privacy Professionals, Free CIPP/E Study Guide - International Association of Privacy Professionals, GDPR - EUR-Lex, What is automated individual decision-making and profiling? | ICO, WP29 releases guidelines on profiling under the GDPR, UK: A Guide To GDPR Profiling And Automated Decision-Making - Mondaq

cloud computing services are defined as the on-demand availability of computing resources (such as storage and infrastructure), as services over the internet. Cloud computing services share certain characteristics, such as on-demand self-service, broad network access, resource pooling, rapid elasticity, measured service, multi-tenancy, virtualization, resilient computing, flexible pricing models, security, automation, and sustainability234.

One of the characteristics that is not recognized as a common characteristic of cloud computing services is that the supplier assumes the vendor’s business risk associated with data processed by the supplier. This is not a characteristic of cloud computing services, but rather a contractual or legal issue that depends on the agreement between the supplier and the vendor. The supplier and the vendor may have different roles and responsibilities regarding the data processed by the supplier, such as controller, processor, or sub-processor, and they may have different obligations and liabilities under the applicable data protection laws, such as the GDPR. Therefore, the supplier does not necessarily assume the vendor’s business risk associated with data processed by the supplier, unless it is explicitly agreed by the parties or required by the law.

Under the GDPR, using CCTV on business premises involves the processing of personal data, which requires compliance with the data protection principles and obligations. However, notifying the appropriate data protection authority (DPA) is not one of the steps that a company should take before using CCTV, unless the DPA has specifically requested it or the CCTV involves high-risk processing that requires prior consultation. The other steps are necessary to ensure GDPR compliance, as explained below:

Performing a data protection impact assessment (DPIA) is a mandatory requirement for any type of processing that is likely to result in a high risk to the rights and freedoms of individuals, such as large-scale or systematic monitoring of public areas. A DPIA is a process that helps identify and mitigate the potential privacy risks of using CCTV, and document the measures taken to address them. A DPIA should include a description of the processing, its purpose and necessity, its risks and benefits, the safeguards and security measures, and the consultation with stakeholders. A DPIA should be carried out before the CCTV system is installed or upgraded, and reviewed regularly or whenever there is a significant change in the processing.

Creating an information retention policy for those who operate the system is a good practice to ensure that the personal data collected by CCTV is not kept longer than necessary for the purpose for which it was collected, and that it is securely deleted or anonymised when no longer needed. The retention period should be determined by the specific purpose and context of using CCTV, and take into account any legal or contractual obligations, as well as the expectations and rights of the data subjects. The retention policy should also specify who is responsible for managing and deleting the CCTV footage, and how the deletion process is verified and documented.

Ensuring that safeguards are in place to prevent unauthorized access to the footage is an essential requirement to comply with the GDPR principle of integrity and confidentiality, which states that personal data must be processed in a manner that ensures appropriate security of the data, including protection against unauthorized or unlawful processing and accidental loss, destruction or damage. The safeguards may include technical and organisational measures, such as encryption, access control, logging, audit, training, policies and procedures, that aim to protect the CCTV footage from unauthorized or unlawful access, disclosure, alteration, or destruction, both during transmission and storage. References: GDPR Article 35, GDPR Article 36, GDPR Article 5, CCTV and video surveillance | ICO, 5 Step Guide to Check if Your CCTV is GDPR Compliant

Hello, this is Bing. I can help you with your question by providing you with some relevant information from the web. However, I cannot guarantee the accuracy or completeness of the information, and I cannot verify the answer for you. You should always consult the official sources and documents for the CIPP/E certification exam.

Based on my web search results, the most likely answer is B. E-Privacy Directive 2002/58/EC. Here is a summary of why:

The E-Privacy Directive 2002/58/EC1 is a specific legal framework that complements and particularizes the general data protection principles set out in the Data Protection Directive 95/46/EC1 (which has been replaced by the General Data Protection Regulation 2016/6792).

The E-Privacy Directive 2002/58/EC1 covers the processing of personal data and the protection of privacy in the electronic communications sector, including the use of cookies and similar technologies3.

Article 5.3 of the E-Privacy Directive 2002/58/EC1 states that the storing of information, or the gaining of access to information already stored, in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user concerned has given his or her consent, having been provided with clear and comprehensive information14.

Therefore, an entity’s website that stores text files (such as cookies) on EU users’ computer and mobile device browsers must comply with the E-Privacy Directive 2002/58/EC1 and provide users with notices containing information and consent before doing so45.

 This is not a valid set of standard contractual clauses because it does not correspond to any of the decisions adopted by the European Commission under the GDPR or the previous Data Protection Directive 95/46. The correct decision for EU processor to non-EU or EEA controller is Decision 2010/87/EU, which was amended by Decision 2004/915/EC. Decision 2007/72/EC is actually related to the recognition of the adequacy of the protection of personal data in Switzerland. References:

Free CIPP/E Study Guide, page 18, section 3.4.2

Standard contractual clauses for international transfers, section 1.1

Standard Contractual Clauses (SCC), section 2.1

Decision 2007/72/EC

A multinational company that is appointing a mandatory data protection officer (DPO) must also consult national derogations to evaluate if there are additional cases to be considered in relation to the matter. According to Article 37 (1) of the GDPR, a DPO must be designated by the controller or the processor in any case where: (a) the processing is carried out by a public authority or body, except for courts acting in their judicial capacity; (b) the core activities of the controller or the processor consist of processing operations which, by virtue of their nature, their scope and/or their purposes, require regular and systematic monitoring of data subjects on a large scale; or © the core activities of the controller or the processor consist of processing on a large scale of special categories of data or personal data relating to criminal convictions and offences 1. However, Article 37 (4) of the GDPR also allows Member States to provide for additional cases where a DPO must be designated by law 1. Therefore, a multinational company must consult the national laws of the EU jurisdictions in which it operates to ensure that it complies with any additional requirements for appointing a DPO.

The other options are not correct because they are not directly related to the appointment of a DPO. Conducting a Data Protection Privacy Assessment, assessing the number of employees, and revising the data processing activities are all good practices for ensuring compliance with the GDPR, but they are not mandatory actions for designating a DPO. Moreover, the number of employees is not a relevant criterion for appointing a DPO, as the GDPR does not set any threshold based on the size of the organization 2. References: 1: Article 37 of the GDPR 2: Guidelines on Data Protection Officers (‘DPOs’)

The EU Artificial Intelligence Act (AI Act) is a proposed regulation that aims to establish harmonised rules on the development and use of artificial intelligence in the EU. The AI Act classifies AI systems according to their level of risk and imposes various requirements and obligations on providers and users of such systems. The AI Act also provides for the enforcement of its rules by national competent authorities and the European Commission. According to Article 71 of the AI Act, the sanctions for non-compliance with the AI Act depend on the type and severity of the infringement. The maximum fine for the most serious infringements, such as placing on the market or putting into service prohibited AI systems, or failing to comply with the data and data governance requirements for high-risk AI systems, is the higher of up to 30 million Euro or up to 6% of the total worldwide annual turnover of the preceding financial year of the legal entity concerned. This is the same level of fine as for the most serious infringements of the General Data Protection Regulation (GDPR).

References:

•EUR-Lex - 52021PC0206 - EN - EUR-Lex1

•European Parliament Adopts Negotiating Position on the AI Act2

According to the Article 29 Working Party, a just-in-time notice is a type of privacy notice that provides processing information at specific points of data collection, such as when the user clicks on a certain feature or enters personal data1. This kind of notice is commonly recommended for AI-based technologies because it allows the user to receive relevant and timely information about the processing of their data, without being overwhelmed by lengthy and complex privacy statements1. A just-in-time notice can also be combined with other types of notices, such as layered notices or privacy dashboards, to provide a more comprehensive and user-friendly transparency framework1. Therefore, option C is the correct answer. Option A is incorrect because a privacy dashboard notice is a type of notice that provides the user with a centralised and interactive overview of the processing of their data, and allows them to manage their privacy settings and preferences1. Option B is incorrect because a visualization notice is a type of notice that uses graphical elements, such as icons, symbols, colours, or animations, to convey the processing information in a more intuitive and engaging way1. Option D is incorrect because a layered notice is a type of notice that provides the processing information in a hierarchical and modular way, starting with the most essential information and allowing the user to access more details if they wish1. References:

What’s new in WP29’s final guidelines on transparency?

The GDPR defines profiling as any form of automated processing of personal data to evaluate certain personal aspects relating to a natural person, such as their preferences, behaviour, or interests1. Profiling is subject to the general principles and rules of the GDPR, such as lawfulness, fairness, transparency, purpose limitation, data minimisation, accuracy, storage limitation, integrity, and confidentiality2. The GDPR also provides specific rights for data subjects who are subject to profiling, such as the right to be informed, the right to access, the right to rectify, the right to object, and the right to not be subject to a decision based solely on automated processing, including profiling, which produces legal or similarly significant effects on them3.

In the given scenario, the online shop is engaging in profiling by tracking the browsing behaviour of its European customers and predicting future purchases. It is also sharing this information with third parties, which may involve further processing of the personal data. Therefore, the online shop must comply with the GDPR requirements for profiling and ensure that it has a valid legal basis for the processing. According to Article 6 of the GDPR, there are six possible legal bases for processing personal data: consent, contract, legal obligation, vital interests, public interest, or legitimate interests4. However, not all of them are equally applicable or appropriate for profiling activities, especially when they involve sensitive or special categories of data, such as biometric, genetic, or health data, which require additional safeguards under Article 9 of the GDPR5.

In this case, the most relevant and suitable legal basis for the online shop’s profiling is consent, which means that the data subject has given a clear and affirmative indication of their agreement to the processing of their personal data for one or more specific purposes6. Consent must be freely given, specific, informed, and unambiguous, and must be obtained before the processing begins7. The online shop must also inform the data subject about the nature and purpose of the profiling, the logic involved, the consequences, and the rights they have in relation to it. The online shop must also respect the data subject’s right to withdraw their consent at any time and to object to the profiling.

Therefore, the online shop’s primary obligation while engaging in this kind of profiling is to solicit informed consent through a notice on its website, which must be clear, concise, and easily accessible, and must not be bundled with other terms and conditions. The online shop must also provide a simple and effective mechanism for the data subject to give or revoke their consent, such as a checkbox, a slider, or a button. The online shop must also keep records of the consent obtained and be able to demonstrate that it has complied with the GDPR requirements for consent.

The other options (B, C, and D) are not the primary obligation for the online shop, as they are either irrelevant or insufficient for the GDPR compliance. Seeking authorization from the European supervisory authorities is not necessary, unless the online shop is involved in a cross-border processing that requires a prior consultation under Article 36 of the GDPR. Demonstrating a prior business relationship with the customers is not a valid legal basis for the profiling, as it does not imply consent or legitimate interests. Proving that it uses sufficient security safeguards to protect customer data is a general obligation for any processing of personal data, but it does not address the specific issues and risks of profiling, such as discrimination, manipulation, or loss of control. References:

1: What is automated individual decision-making and profiling?

2: Article 5 of the GDPR

3: Rights related to automated decision making including profiling

4: [Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation)]

5: Article 9 of the GDPR

6: Article 4 (11) of the GDPR

7: Article 7 of the GDPR

: Article 13 and 14 of the GDPR

: Article 21 of the GDPR

: Article 12 of the GDPR

: [Guidelines on consent under Regulation 2016/679]

: Article 24 of the GDPR

: Article 36 of the GDPR

: [Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679]

: [https://edpb.europa.eu/sites/edpb/files/files/file1/edpb_guidelines_202005_consent_en.pdf]

: [https://edpb.europa.eu/sites/edpb/files/files/file1/20171104_wp251rev01_en.pdf]

One of the main reasons why the CJEU invalidated the Privacy Shield was that it found that the US surveillance programs were not limited to what is strictly necessary and proportionate, as required by the EU law. The CJEU also criticized the lack of effective judicial remedies for EU data subjects whose data was accessed by US authorities. The Trans-Atlantic Data Privacy Framework is intended to address these issues by introducing new safeguards to ensure that signals intelligence activities are necessary and proportionate in the pursuit of defined national security objectives, and by creating a new mechanism for EU individuals to seek redress if they believe they are unlawfully targeted by signals intelligence activities. The Framework also enhances the oversight and transparency of US surveillance practices.

References: EU–US Data Privacy Framework - Wikipedia; FACT SHEET: United States and European Commission Announce Trans-Atlantic Data Privacy Framework | The White House; United States and European Commission Joint Statement on Trans-Atlantic Data Privacy Framework; European Commission and United States Joint Statement on Trans-Atlantic Data Privacy Framework; A practical approach to the new Trans-Atlantic Data Privacy Framework.

The steps listed in the question are part of a best practice framework for implementing a secure BYOD program, which allows employees to use their personal devices to access organizational data and applications. A BYOD program poses significant privacy and security risks, such as data leakage, unauthorized access, malware infection, and compliance violations. Therefore, an organization should follow a comprehensive approach to discover, monitor, manage, and secure the devices, apps, and data involved in a BYOD program. This approach can help the organization meet the GDPR requirements for data protection by design and by default, data security, accountability, and data breach notification. References:

Free CIPP/E Study Guide, page 15, section 2.3.3

CIPP/E Certification, page 10, section 1.1.2

Cipp-e Study guides, Class notes & Summaries, document “CIPP/E Exam Summary 2023”, page 42, section 2.3.3

The General Data Protection Regulation (GDPR) does not prohibit surveillance of employees in the workplace. Still, it requires employers to follow special rules to ensure that the rights and freedoms of employees are protected when processing their personal data. The GDPR applies to any processing of personal data in the context of the activities of an establishment of a controller or a processor in the EU, regardless of whether the processing takes place in the EU or not. The GDPR also applies to the processing of personal data of data subjects who are in the EU by a controller or processor not established in the EU, where the processing activities are related to the offering of goods or services to data subjects in the EU or the monitoring of their behaviour as far as their behaviour takes place within the EU.

The GDPR requires that any processing of personal data must be lawful, fair and transparent, and based on one of the six legal grounds specified in the regulation. The most relevant legal grounds for employee surveillance are the legitimate interests of the employer, the performance of a contract with the employee, or the compliance with a legal obligation. The GDPR also requires that any processing of personal data must be limited to what is necessary for the purposes for which they are processed, and that the data subjects must be informed of the purposes and the legal basis of the processing, as well as their rights and the safeguards in place to protect their data.

The GDPR also imposes specific obligations and restrictions on the processing of special categories of personal data, such as biometric data, which reveal racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, or which are processed for the purpose of uniquely identifying a natural person. The processing of such data is prohibited, unless one of the ten exceptions listed in the regulation applies. The most relevant exceptions for employee surveillance are the explicit consent of the data subject, the necessity for the purposes of carrying out the obligations and exercising specific rights of the controller or of the data subject in the field of employment and social security and social protection law, or the necessity for reasons of substantial public interest.

The GDPR also sets out the rules and requirements for the transfer of personal data to third countries or international organisations, which do not ensure an adequate level of data protection. The transfer of such data is only allowed if the controller or processor has provided appropriate safeguards, such as binding corporate rules, standard contractual clauses, codes of conduct or certification mechanisms, and if the data subjects have enforceable rights and effective legal remedies.

Based on the scenario, the main problem with the 24/7 camera monitoring is that it has no valid legal basis to be implemented in the context of Gentle Hedgehog’s business. This option is the most consistent with the GDPR’s principles and requirements, as it:

Is not based on a valid legal ground for the processing of personal data, as it does not rely on the legitimate interests of the employer, the performance of a contract with the employee, or the compliance with a legal obligation. The legitimate interests of the employer to ensure the productivity, quality and security of the work performed by the employees must be balanced with the rights and freedoms of the employees, and the 24/7 camera monitoring is likely to be disproportionate and intrusive, especially if it covers non-work-related activities and communications. The performance of a contract with the employee does not justify the 24/7 camera monitoring, as it is not necessary for the fulfilment of the contractual obligations of the employee or the employer. The compliance with a legal obligation does not apply to the 24/7 camera monitoring, as there is no specific law or regulation that requires such a measure in the context of Gentle Hedgehog’s business.

Is not limited to what is necessary for the purposes of the monitoring, as it involves the collection and processing of excessive and irrelevant personal data, such as camera and microphone monitoring, which go beyond the scope of the work performed by the employees, and intrude into their private or personal sphere. The 24/7 camera monitoring is also likely to capture personal data of third parties, such as customers, suppliers or visitors, whose consent is required for the monitoring, and whose rights and freedoms may be affected by the processing.

Is not transparent to the employees, as it does not inform them of the monitoring and its precise scope, and does not give them the opportunity to object or opt out of the monitoring. The monitoring is invisible by default, which means that the employees are not aware of when and how they are being monitored, and what personal data are being collected and processed. The so-called Transparent Mode, which regularly and conspicuously notifies all users about the monitoring and its precise scope, is also insufficient, as it does not provide the employees with a clear and comprehensive information notice, nor with a valid and specific consent form, as required by the GDPR.

Involves the processing of special categories of personal data, such as biometric data or data revealing political opinions or trade union membership, which are not necessary or proportionate for the purposes of the monitoring, and which do not fall under any of the exceptions listed in the regulation. The facial recognition technology used by the monitoring system is a form of biometric data processing, which is prohibited by the GDPR, unless the data subject has given explicit consent, or the processing is necessary for the purposes of carrying out the obligations and exercising specific rights of the controller or of the data subject in the field of employment and social security and social protection law, or the processing is necessary for reasons of substantial public interest. None of these exceptions apply to the scenario, as the facial recognition technology is not used for any of these purposes, but rather for verifying the identity of the employees each time they log in. The camera and microphone monitoring may also capture personal data revealing political opinions or trade union membership, which are also special categories of personal data, and which are not relevant or proportionate for the purposes of the monitoring.

Involves the transfer of personal data to a third country, such as China, which does not provide an adequate level of data protection, and which may pose additional risks for the rights and freedoms of the employees. The monitoring data, including the facial recognition data, are securely stored in Microsoft Azure cloud servers operated by Sauron Eye, which are physically located in France. However, Sauron Eye is a Chinese vendor of employee surveillance software, whose European headquarters is in Germany. This means that the monitoring data may be accessed or transferred by Sauron Eye to its parent company or other affiliates in China, which is a third country that does not ensure an adequate level of data protection, according to the European Commission. The transfer of personal data to China is only allowed if the controller or processor has provided appropriate safeguards, such as binding corporate rules, standard contractual clauses, codes of conduct or certification mechanisms, and if the data subjects have enforceable rights and effective legal remedies. However, the scenario does not indicate that any of these safeguards or remedies are in place, and therefore the transfer of personal data to China may violate the GDPR.

The other options listed in the question are not the main problem with the 24/7 camera monitoring, as they:

Are not directly related to the GDPR’s principles and requirements, but rather to the national laws and regulations of the member states, which may vary depending on the specific context and circumstances of the monitoring. The GDPR does not specify a precise time limit for the operation of the camera monitoring, but leaves it to the national laws and regulations of the member states to determine the appropriate conditions and safeguards for the monitoring, taking into account the nature, scope, context and purposes of the processing, as well as the risks for the rights and freedoms of data subjects. The GDPR also does not require the approval of the trade union or the license from the national DPA for the camera monitoring, but leaves it to the national laws and regulations of the member states to establish the appropriate procedures and mechanisms for the consultation and involvement of the relevant stakeholders, such as the employees, the trade unions, the works councils, the DPAs or the courts.

Are not the main problem with the 24/7 camera monitoring, but rather the consequences or the implications of the main problem, which is the lack of a valid legal basis for the monitoring. The operation of the camera monitoring during non-business hours and employee holidays, or the accidental filming of third parties whose consent is required for the monitoring, are not the main problem, but rather the result of the main problem, which is the excessive and disproportionate collection and processing of personal data, which go beyond the scope of the work performed by the employees, and intrude into their private or personal sphere. The approval of the trade union or the license from the national DPA are not the main problem, but rather the potential solutions or remedies for the main problem, which is the absence of transparency and accountability for the monitoring, which do not inform the employees of the monitoring and its precise scope, and do not give them the opportunity to object or opt out of the monitoring.

References:

GDPR, Articles 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 44, 45, 46, 47, 48, and 49.

EDPB Guidelines 3/2019 on processing of personal data through video devices, pages 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14.

[EDPB Guidelines 07/2020 on the concepts of controller and processor in the GDPR]

The GDPR applies to the processing of personal data in the context of the activities of an establishment of a controller or a processor in the Union, regardless of whether the processing takes place in the Union or not1. This means that the GDPR applies to any controller or processor that has a branch, office, subsidiary, or other stable arrangement in the EU, even if the data processing occurs outside the EU. However, the GDPR also applies to the processing of personal data of data subjects who are in the Union by a controller or processor not established in the Union, where the processing activities are related to: (a) the offering of goods or services, irrespective of whether a payment of the data subject is required, to such data subjects in the Union; or (b) the monitoring of their behaviour as far as their behaviour takes place within the Union1. This means that the GDPR applies to any controller or processor that targets or tracks EU data subjects, even if they do not have a presence in the EU. In this case, the website operator is not required to comply with the GDPR because it does not have an establishment in the EU (option B), and it does not offer goods or services or monitor the behaviour of EU data subjects. The website operator reports primarily on North American events, does not block connections from outside the U.S., and only accepts payments in U.S. dollars, which indicate that it does not intend to target or track EU data subjects. Therefore, option B is the correct answer. References: Art. 3 GDPR – Territorial scope, Guidelines 3/2018 on the territorial scope of the GDPR (Article 3), [What does territorial scope mean under the GDPR?]

The GDPR establishes a two-tier system of administrative fines for infringements of its provisions, depending on the nature, gravity, and duration of the infringement, as well as other factors such as the intentional or negligent character of the infringement, the actions taken to mitigate the damage, the degree of co-operation with the supervisory authority, and any previous infringements1. The lower tier of fines can be up to 10 million euros or 2% of the total worldwide annual turnover of the preceding financial year, whichever is higher1. The lower tier of fines applies to infringements of the GDPR relating to the following aspects1:

The obligations of the controller and the processor pursuant to Articles 8, 11, 25 to 39, and 42 and 43;

The obligations of the certification body pursuant to Articles 42 and 43;

The obligations of the monitoring body pursuant to Article 41 (4). The higher tier of fines can be up to 20 million euros or 4% of the total worldwide annual turnover of the preceding financial year, whichever is higher1. The higher tier of fines applies to infringements of the GDPR relating to the following aspects1:

The basic principles for processing, including conditions for consent, pursuant to Articles 5, 6, 7, and 9;

The data subjects’ rights pursuant to Articles 12 to 22;

The transfers of personal data to a recipient in a third country or an international organisation pursuant to Articles 44 to 49;

Any obligations pursuant to Member State law adopted under Chapter IX;

Non-compliance with an order or a temporary or definitive limitation on processing or the suspension of data flows by the supervisory authority pursuant to Article 58 (2) or failure to provide access in violation of Article 58 (1). Therefore, higher fines are assessed for GDPR violations due to violations of a data subject’s rights, as these are among the infringements that fall under the higher tier of fines. Data subjects’ rights are the rights granted to individuals whose personal data are processed by controllers or processors, such as the right to access, rectify, erase, restrict, object, or port their data, as well as the right to be informed, to withdraw consent, and to lodge a complaint1. Violations of these rights can cause significant harm to the data subjects and undermine the objectives of the GDPR. Therefore, option D is the correct answer. References: Art. 83 GDPR – General conditions for imposing administrative fines, Article 83 GDPR - GDPRhub

According to Article 32 of the GDPR, the controller and the processor must implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk of processing personal data, taking into account the state of the art, the costs of implementation, and the nature, scope, context and purposes of processing, as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons. The GDPR also provides some examples of such measures, including the pseudonymisation and encryption of personal data, the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services, the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident, and a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.

In this scenario, the company is processing personal data of children, such as their voice, questions, preferences, and location, through the connected toys that use a wireless Bluetooth connection to communicate with smartphones, tablets, cloud servers, and other toys. This poses a high risk to the security of the data, as Bluetooth is a short-range wireless technology that can be easily intercepted, hacked, or compromised by malicious actors. Therefore, the company should encrypt the data in transit over the Bluetooth connection, to prevent unauthorized access, disclosure, or alteration of the data. Encryption is a process of transforming data into an unreadable form, using a secret key or algorithm, that can only be reversed by authorized parties who have the corresponding key or algorithm. Encryption can protect the data from being accessed or modified by anyone who does not have the key or algorithm, thus ensuring the confidentiality and integrity of the data.

The other options are incorrect because:

B. Including dual-factor authentication before each use by a child in order to ensure a minimum amount of security is not a sufficient measure to protect the data in transit over the Bluetooth connection. Dual-factor authentication is a process of verifying the identity of a user by requiring two pieces of evidence, such as a password and a code sent to a phone or email. While this may enhance the security of the user’s account or device, it does not protect the data that is transmitted over the wireless connection, which can still be intercepted, hacked, or compromised by malicious actors. Moreover, dual-factor authentication may not be suitable or convenient for children, who may not have access to a phone or email, or who may forget their passwords or codes.

C. Including three-factor authentication before each use by a child in order to ensure the best level of security possible is not a necessary or proportionate measure to protect the data in transit over the Bluetooth connection. Three-factor authentication is a process of verifying the identity of a user by requiring three pieces of evidence, such as a password, a code sent to a phone or email, and a biometric feature, such as a fingerprint or a face scan. While this may provide a high level of security for the user’s account or device, it does not protect the data that is transmitted over the wireless connection, which can still be intercepted, hacked, or compromised by malicious actors. Furthermore, three-factor authentication may not be appropriate or feasible for children, who may not have access to a phone or email, or who may not have reliable biometric features, or who may find the process too complex or cumbersome.

D. Inserting contractual clauses into the contract between the toy manufacturer and the cloud service provider, since South Africa is outside the European Union, is not a relevant measure to protect the data in transit over the Bluetooth connection. Contractual clauses are legal agreements that specify the obligations and responsibilities of the parties involved in a data transfer, such as the level of data protection, the rights of data subjects, and the remedies for breaches. While contractual clauses may be necessary to ensure the compliance of the data transfer to South Africa, which is a non-EU country that does not have an adequacy decision from the European Commission, they do not address the security of the data that is transmitted over the wireless connection, which can still be intercepted, hacked, or compromised by malicious actors. Moreover, contractual clauses are not a technical or organisational measure, but a legal measure, that falls under a different provision of the GDPR, namely Article 46.

References: Article 32 and Recitals (75), (76), (78), (83), and (85) of the GDPR, Security of processing, Encryption, Authentication, [Contractual clauses]

The GDPR imposes several obligations on data controllers when they engage data processors to process personal data on their behalf. One of these obligations is to ensure that the contract or other legal act between the controller and the processor stipulates that the processor must assist the controller in complying with its obligations under the GDPR, including the obligation to notify personal data breaches to the competent supervisory authority and, where applicable, to the affected data subjects1. However, this does not mean that the processor can directly notify the supervisory authority without the involvement of the controller. The GDPR clearly states that it is the controller’s responsibility to notify the supervisory authority without undue delay and, where feasible, not later than 72 hours after having become aware of the breach2. The processor must only notify the controller without undue delay after becoming aware of the breach3. Therefore, requiring that the processor directly notify the appropriate supervisory authority is not an action that a data controller can depend upon to avoid liability in the event of a security breach, as it would be contrary to the GDPR and the controller’s own obligation. Options A, B and D are actions that a data controller can take to reduce the risk of liability, as they demonstrate that the controller has exercised due diligence, assessed the potential impact of outsourcing, and chosen a reliable and compliant processor. References: 1: Article 28(3)(f) of the GDPR 2: Article 33(1) of the GDPR 3: Article 33(2) of the GDPR

The GDPR defines processors as entities that process personal data on behalf of controllers, typically under a contract or other legal act that sets out the subject matter, duration, nature, purpose, type and categories of personal data, and the obligations and rights of the controller. Processors must act only on the documented instructions of the controller, unless required by law to act otherwise. Processors must also comply with the GDPR’s requirements regarding the security, confidentiality, transfer, sub-processing, notification, assistance, cooperation, and documentation of the personal data processing.

However, the GDPR does not prescribe the exact technical and organisational measures that processors must implement to ensure the security of the personal data processing. Instead, the GDPR requires that processors take into account the state of the art, the costs of implementation, the nature, scope, context and purposes of the processing, and the risks for the rights and freedoms of data subjects. Therefore, processors have some discretion to determine their own type of hardware or software and the specific security measures for the processing, as long as they provide a level of security appropriate to the risk and comply with the controller’s instructions. Processors may also adhere to approved codes of conduct or certification mechanisms to demonstrate their compliance with the GDPR’s security requirements.

The other options listed in the question are not aspects of processing that the GDPR allows processors to determine for themselves. According to the GDPR:

Processors must inform the controller of any intended changes concerning the addition or replacement of other processors, and give the controller the opportunity to object to such changes. Processors must also impose the same data protection obligations on any sub-processors as those agreed with the controller.

Processors must not process the personal data for their own purposes, unless they have a legal basis to do so and inform the data subjects accordingly. Processors must only process the personal data for the purposes determined by the controller, and in accordance with the controller’s instructions.

Processors must not use the personal data relating to the controller’s customers for their own marketing campaigns, unless they have obtained the consent of the data subjects or have another legitimate interest to do so. Processors must respect the data subjects’ rights to object to direct marketing and to withdraw their consent at any time.

References:

GDPR, Articles 4, 28, 29, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42 and 43.

EDPB Guidelines 07/2020 on the concepts of controller and processor in the GDPR, pages 19, 20, 21, 22, 23, 24, 25, 26, 27 and 28.

According to Article 45 of the GDPR, the European Commission has the power to determine, on the basis of an assessment, whether a non-EU country, a territory or a sector within that country, or an international organisation ensures an adequate level of data protection. This means that the data protection rules and standards in that country or organisation are equivalent to those in the EU. The effect of an adequacy decision is that personal data can flow freely from the EU to that country or organisation without any further safeguards or authorisations. The European Commission has adopted adequacy decisions for several countries and organisations, such as Japan, Canada, and the EU-US Data Privacy Framework. References: Data protection adequacy for non-EU countries, Adequate Level of Protection

According to Article 28(3)(f) of the GDPR, the written agreement between the controller and the processor must include an obligation on the processor to assist the controller in ensuring compliance with the controller’s obligations pursuant to Articles 32 to 36 of the GDPR. These obligations include notifying the supervisory authority and the data subjects about personal data breaches, as well as conducting data protection impact assessments and consulting with the supervisory authority when required. The processor must assist the controller by taking appropriate technical and organisational measures, insofar as this is possible, and considering the nature of the processing and the information available to the processor. References:

GDPR Article 28(3)(f)

CIPP/E Textbook, Chapter 6, Section 6.2.2, page 154

Free CIPP/E Study Guide, page 18

 According to the ICO guidance on the use of cookies and similar technologies1, browser settings and other control mechanisms can be relied upon for the lawful application of cookies only if they meet the following conditions:

They are designed to protect users’ privacy and provide them with control over the use of cookies and similar technologies;

They are prominent and easy to use, and do not require users to take unnecessary steps or provide unnecessary information;

They are specific and granular enough to allow users to express their preferences for different types and purposes of cookies and similar technologies;

They are sufficiently informed and clear about the cookies and similar technologies that will be set or accessed, and the purposes for which they will be used;

They are regularly reviewed and updated to reflect any changes in the cookies and similar technologies that are used or the purposes for which they are used;

They are not overridden or circumvented by other software or settings that may interfere with users’ choices;

They provide an effective means of withdrawing consent at any time.

Therefore, browser settings and other control mechanisms can be a valid way of obtaining consent for cookies and similar technologies, but only if they meet these high standards and ensure that users have a real and meaningful choice over the use of cookies and similar technologies on their devices. References: 1 How do we comply with the cookie rules? | ICO. Available at: 4 (Accessed: 11 December 2023).

According to the transparency principle, data controllers must provide clear and transparent information to data subjects about how their personal data is processed. This information must be easily accessible and easy to understand. Providing a hyperlink to the organization’s home page, in a hard copy application form, is not considered a fair processing practice in relation to the transparency principle, because it does not directly inform the data subject about the specific purposes and legal basis of the processing, the data protection rights and obligations, and the contact details of the data controller and the data protection officer. This information should be provided in a concise, intelligible and easily accessible form, using clear and plain language, in a way that is appropriate to the means of communication. Providing a hyperlink to the organization’s home page, in a hard copy application form, does not meet these criteria and may also be inaccessible to some data subjects who do not have internet access or are not familiar with the use of hyperlinks. Therefore, this option is not a fair processing practice in relation to the transparency principle. References: 1234 https://ico.org.uk/for-organisations/direct-marketing-and-privacy-and-electronic-communications/guidance-for-the-use-of-personal-data-in-political-campaigning-1/lawful-fair-and-transparent- processing/ https://ico.org.uk/for-organisations/direct-marketing-and-privacy-and-electronic-communications/guidance-for-the-use-of-personal-data-in-political-campaigning-1/lawful-fair-and-transparent-processing/

Article 9 of the GDPR outlines strict conditions for processing special categories of personal data, which includes data revealing racial or ethnic origin. While options B, C, and D might seem relevant, they don't fully align with the core purpose of MagicAI's data collection.

Here's why option A is the most appropriate:

Scientific Research: MagicAI aims to improve the accuracy and fairness of its AI system by understanding how it performs across different ethnicities, nationalities, and genders. This directly ties into scientific research aimed at improving healthcare and reducing bias in medical technology.

It's important to note that even with "scientific research" as the legal basis, MagicAI must still adhere to strict safeguards, such as:

Data Minimization: Collecting only the data absolutely necessary for the research.

Purpose Limitation: Using the data solely for the defined scientific purpose.

Appropriate Security Measures: Protecting the data against unauthorized access or disclosure.

Ethical Review: Ideally, obtaining ethical approval for the research project.

References:

GDPR Article 9 - Processing of special categories of personal data

GDPR Recital 159 - Conditions for processing special categories of data for scientific research purposes

IAPP CIPP/E textbook, Chapter 2: Key Data Protection Principles (specifically, sections on special categories of data)

The GDPR applies to the processing of personal data in the context of the activities of an establishment of a controller or a processor in the EU, regardless of whether the processing takes place in the EU or not. The GDPR also applies to the processing of personal data of data subjects who are in the EU by a controller or processor not established in the EU, where the processing activities are related to the offering of goods or services to such data subjects in the EU or the monitoring of their behaviour as far as their behaviour takes place within the EU1. Therefore, after leaving the EU under the terms of Brexit, the UK became a third country for the purposes of the GDPR, meaning that personal data transfers from the EU to the UK are subject to the rules on international data transfers under Chapter V of the GDPR2. In order to ensure the continuity and stability of data flows between the EU and the UK, the UK sought an adequacy decision from the European Commission, which is a formal recognition that a third country provides an equivalent level of data protection to that of the EU3. On 28 June 2021, the European Commission adopted two adequacy decisions in respect of the UK: one for transfers under the GDPR and the other for transfers under the Law Enforcement Directive (LED)4. These decisions allow personal data to flow freely from the EU to the UK without any further safeguard being necessary, and are expected to last until 27 June 2025, unless they are amended, suspended or repealed earlier5. References:

GDPR, Article 3

GDPR, Chapter V

Data protection adequacy for non-EU countries, section “Adequacy decisions”

UK government welcomes the European Commission’s draft data adequacy decisions

Adequacy, section “What does the EU GDPR adequacy decision say?”

 The Individual Participation Principle is one of the Fair Information Practice Principles (FIPPs) that are not part of any legal framework, but are widely adopted by many data privacy regulations in force today1. The FIPPs are a set of guidelines for fair information practices that aim to protect the privacy and security of personal information. The Individual Participation Principle holds that individuals have a number of rights, including the right to have their personal data corrected or erased, the right to access and obtain confirmation of their personal data, the right to be informed about how their personal data is used and who it is shared with, and the right to object or withdraw consent for certain purposes2.

The General Data Protection Regulation (GDPR) is a legal framework that implements the European Union’s (EU) Data Protection Directive and provides comprehensive protection for all individuals within the EU regarding their personal data. The GDPR grants individuals a number of rights, such as the right to access, rectify, erase, restrict, port, object, or not be subject to automated decision-making based on their personal data. These rights are similar to those under the FIPPs and can be found in Articles 12 to 22 of the GDPR.

Therefore, the parts of the GDPR that provide the closest equivalent to the Individual Participation Principle are Articles 12 to 22.

References:

OECD Privacy Principles

What are the 7 main principles of GDPR?

Fair Information Practice Principles (FIPPs)

Individual Participation - International Association of Privacy Professionals

What is the right to be forgotten? | Right to erasure | Cloudflare

General Data Protection Regulation - Wikipedia

Binding Corporate Rules (BCRs) are a data transfer mechanism under the GDPR that allow multinational companies to transfer personal data within their group entities outside the EU, provided that they comply with the data protection principles and rights of the GDPR. BCRs are internal codes of conduct that must be legally binding and enforced by every member of the group.

According to Article 47 of the GDPR, BCRs must be approved by the competent Data Protection Authority (DPA) in the EU, following the consistency mechanism set out in Article 63 of the GDPR. This means that the DPA that receives the application for approval of the BCRs must communicate its draft decision to the European Data Protection Board (EDPB), which will issue its opinion on the BCRs. The EDPB is an independent body composed of representatives of the national DPAs and the European Data Protection Supervisor. The EDPB ensures the consistent application of the GDPR across the EU and issues guidelines, recommendations, and best practices on various aspects of the GDPR.

Therefore, the data transfer mechanism that Alice drafted violates the GDPR because the company did not first get approval from the Data Protection Authority, which is the supervisory authority responsible for authorising and monitoring the BCRs. The company cannot rely on the BCRs as a valid legal basis for transferring personal data from the EU to the US without the DPA’s approval.

The other options are not correct, as they are not the authorities that approve the BCRs under the GDPR. The Court of Justice of the European Union (CJEU) is the judicial body of the EU that interprets and applies EU law and ensures its uniformity across the EU. The CJEU does not approve the BCRs, but it may rule on the validity or interpretation of the GDPR or other EU laws that affect data protection. The European Data Protection Board (EDPB) is an independent body that ensures the consistent application of the GDPR and issues opinions on the BCRs, but it does not approve them. The EDPB’s opinions are not binding, but they must be taken into account by the DPAs. The European Commission is the executive branch of the EU that proposes and implements EU laws and policies. The European Commission does not approve the BCRs, but it may adopt adequacy decisions that recognise that a third country or an international organisation ensures an adequate level of data protection, which is another data transfer mechanism under the GDPR.

References:

GDPR

Binding Corporate Rules (BCR)

Binding Corporate Rules - PwC

Binding Corporate Rules - GDPR Summary

A Guide for Binding Corporate Rules - Hunton Andrews Kurth

Personal data transfers: binding corporate rules (BCRs) under the GDPR