privacy/personal data protection - legal aspects of new technologies

On 10 January 2019 Advocate General Maciej Szpunar at the Court of Justice of the European Union issued an opinion on the right to be forgotten in the Google search engine, in CNIL (C-136/17). The specific issue is whether, if a data subject requests to be forgotten with respect to sensitive data, Google has an absolute duty to remove the person’s data. The case arose in France before the General Data Protection Regulation entered into force on 25 May 2018, but the conclusions stated in the opinion are also relevant to how the right to be forgotten will be interpreted under the GDPR going forward.

Until now, despite countless warnings before entry into force of the EU’s General Data Protection Regulation in May 2018, administrative authorities have not imposed high fines for violation of regulations on processing of personal data. But this situation seems to be changing, at least in France. On 21 January 2019 the French data protection authority, the Commission Nationale de l'Informatique et des Libertés (CNIL), imposed a fine of EUR 50 million on Google LLC. The CNIL found that Google had not processed personal data transparently, providing data subjects inadequate information on processing and personalising ads without the consent of the persons who were shown the ads.

Apart from potentially very high administrative penalties that national data protection authorities may impose on violators of the EU’s General Data Protection Regulation (as has already occurred, for example, in France), under the GDPR any person who has suffered material or non-material damage has the right to obtain compensation from the controller or processor of his personal data for the damage suffered. This is an instrument that has attracted much less attention than administrative sanctions, but it may have very serious financial consequences.

At the end of September the French personal data state processing regulator, the Commission Nationale Informatique & Liberté (CNIL), published a preliminary analysis of the issue of what kind of systems suitable for blockchain might apply to personal data processing. The CNIL has also been looking at the issues that are fundamental from the point of view of the GDPR, for example who the controllers and processors are on a blockchain. The CNIL has proposed a number of specific solutions but realises that it does not have extensive knowledge of this technology. It has said that it is open to proposals from experts and says they are welcome to propose their own solutions.

Newly formed companies, and companies that have been on the market for some time, are becoming increasingly aware of their obligations under AML/FT regulations. Firms in various sectors, such as the technological sector, do not always realise that these obligations are only applicable to the types of entities listed in AML laws. Some businesses employ know your customer (KYC) identification procedures equivalent to those provided for in AML laws even though they are not subject to these laws. The problem is that overzealousness of this kind might be a breach of laws in other areas, especially personal data laws, above all the GDPR.

In the latest Rzeczpospolita Report on the legal aspects of blockchain and its  applications, I briefly discussed the challenges related to applying data protection regulations in this context. It is a complicated issue as it appears that blockchain can potentially challenge the basic assumptions and regulatory approaches provided by the GDPR.