2020 presented us with many surprises, but the world of data privacy somewhat bucked the trend. Many industry verticals suffered losses, uncertainty and closures, but the protection of individuals and their information continued to truck on.
After many websites simply blocked access unless you accepted their cookies (now deemed unlawful), we received clarity on cookies from the European Data Protection Board (EDPB). With the ending of Privacy Shield, we witnessed the cessation of a legal basis for cross border data transfers.
Severe fines levied for General Data Protection Regulation (GDPR) non-compliance showed organizations that the regulation is far from toothless and that data protection authorities are not easing up just because there is an ongoing global pandemic.
What can we expect in 2021? Undoubtedly, the number of data privacy cases brought before the courts will continue to rise. That’s not necessarily a bad thing: with each case comes additional clarity and precedent on many different areas of the regulation that, to date, is open to interpretation and conjecture.
Last time I spoke to the UK Information Commissioner’s Office regarding a technicality surrounding data subject access requests (DSARs) submitted by a representative, I was told that I was far from the only person enquiring about it, and this only illustrates some of the ambiguities faced by those responsible for implementing and maintaining compliance.
Of course, this is just the GDPR. There are many other data privacy legislative frameworks to consider. We fully expect 2021 to bring full and complete alignment of the ePrivacy Regulations with GDPR, and eradicate the conflict that exists today, particularly around consent, soft opt-in, etc., where the GDPR is very clear but the current Privacy and Electronic Communication Regulation (PECR) not quite so much.
These are just inside Europe but across the globe we’re seeing continued development of data localization laws, which organizations are mandated to adhere to. In the US, the California Consumer Privacy Act (CCPA) has kickstarted a swathe of data privacy reforms within many states, with many calls for something similar at the federal level.
The following year(s) will see that build and, much like with the GDPR, precedent-setting cases are needed to provide more clarity regarding the rules. Will Americans look to replace the shattered Privacy Shield framework, or will they adopt Standard Contractual Clauses (SCCs) more widely? SCCs are a very strong legal basis, providing the clauses are updated to align with the GDPR (something else we’d expect to see in 2021), and I suspect the US will take this road as the realization of the importance of trade with the EU grows.
Other noteworthy movements in data protection laws are happening in Russia with amendments to the Federal Law on Personal Data, which is taking a closer look at TLS as a protective measure, and in the Philippines, where the Personal Data Protection Act 2021 (PDPA) is being replaced by a new bill (currently a work in progress, but it’s coming).
One of the biggest events of 2021 will be the UK leaving the EU. The British implementation of the GDPR comes in the form of the UK Data Protection Bill 2018. Aside from a few deregulations, it’s the GDPR and that’s great… as far as it goes. Having strong local data privacy laws is good, but after enjoying 47 years (at the time of writing) of free movement within the Union, how will being outside of the EU impact British business?
It is thought and hoped that the UK will be granted an adequacy decision fairly swiftly, given that historically local UK laws aligned with those inside the Union, but there is no guarantee. The uncertainty around how data transfers will look in future might result in the British industry using more SCCs. The currently low priority plans to make Binding Corporate Rules (BCR) easier and more affordable will come sharply to the fore as the demand for them goes up.
One thing is certain, it’s going to be a fascinating year for data privacy and we are excited to see clearer definitions, increased certification, precedent-setting case law and whatever else unfolds as we continue to navigate a journey of governance, compliance and security.