November 09, 2020

Privacy Rulings from Europe

By David Flint

German Court Applies Privacy Rights to Foreigners Living Abroad

In a judgment of 19 May 2020 (recently reported in English here), the German Constitutional Court held that the privacy rights contained in the German constitution extended to foreigners living abroad and that the statutory bases in their current design violate the fundamental right to privacy of telecommunications (Art. 10(1) of the Basic Law, Grundgesetz – GG) and the freedom of the press (Art. 5(1) second sentence GG). This applies to the collection and processing of data, the transfer of data thus obtained to other entities, and the cooperation with foreign intelligence services.

Contrast that with the protections in the United States in terms of the Fourth Amendment, the Patriot Act, and others in which it is clear that non-US citizens have little (if any) protection under US law against surveillance by U.S. government entities.

EU Court Invalidates Privacy Shield

In a decision of 16 July 2020, Schrems II, the European Court of Justice invalidated Privacy Shield (the EU-US agreement to permit data transfers) and cast doubt on the use of Standard Contractual Clauses to achieve this. The case raises major issues for businesses in the EU and the US (and indeed in other jurisdictions) and its full repercussions are still being considered.

There will be a Cross-Border Cyber Regulations subcommittee program at the Annual Meeting on 22 September 2020 at 09:00 to discuss what this means, with lawyers from both the EU and the US offering their insights into this very important case.

David Flint