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CLIENT ALERT: The European Union's New Data Privacy Law Goes Into Effect

On May 25, 2018, the European Union’s (“the EU”) new data privacy law went into effect.[1]   The General Data Protection Regulation (“GDPR”) concerns the processing of personal data that can be searched according to specified criteria such as geographical scope. 

Who it affects

The GDPR applies to all organizations that maintain offices or store data in the EU.  It also applies to many of the core organizations on the web.  For instance, it applies to social media, apartment rental, e-commerce, and internet search sites.  If your website conducts business in the EU, then the GDPR will apply.  Additional factors that would require a company to be GDPR compliant include sales or marketing to EU citizens, accepting any EU country’s currency, an EU country domain suffix, shipping services to the EU, or language translation or website in an EU language.

General global marketing does not require GDPR compliance.  If you use Google Adwords, and an EU citizen and resident visits your webpage as a result of this ad, the GDPR would not apply because there was no targeted interface with EU citizens.  The fact that an unsolicited EU citizen can and does visit your website does not require your organization to be GDPR compliant.  If you take no steps to interface with EU citizens, GDPR compliance is not required. 

Steps you should take now if your organization must be GDPR compliant

  • Provide customers and website visitors with detailed information on how data will be collected and used.
  • Redesign consent forms so that users must affirmatively agree to all uses of their data, and they can select those uses to which they agree and those to which they decline.
  • Create forms that distinguish between consent versus agreement to general terms and conditions.
  • Store customer preferences.
  • Audit data regularly, including where data is stored, why data is collected, how data is obtained, and how much duplication of data exists across multiple sites.
  • Audit your service providers’ data, and review their data procedures.
  • Understand whether your organization is a data processor or data controller. A processor processes personal data on behalf of a controller, whereas a controller determines the purpose and means of how data is processed.
  • Ask for explicit consent from consumers anytime you want to use data for ad targeting purposes.
  • Use “group data” that isn’t precise enough to target individual consumers.
  • Implement procedures and technology that ensures data can be permanently erased.
  • Appoint a Data Protection Officer who is knowledgeable about the GDPR to oversee compliance with respect to data collection, storage, and data processing.
  • Train all employees that have access to personal data on the GDPR requirements, including the requirement that internal data on employees must comply with the GDPR.
  • Prepare for data breaches by creating internal processes to detect, report, and investigate breaches in compliance with the GDPR.

What organizations should NOT do if you are required to be GDPR complaint

  • Rely on the E.U.-U.S. Privacy Shield to avoid compliance with the GDPR. Companies are still required to comply with the GDPR in order to receive Privacy Shield coverage, and the scope of the GDPR is much wider than the scope of the Privacy Shield.
  • Create exposure to the hefty penalties imposed by the GDPR for non-compliance. Companies are liable for 4% of their annual turnover or 20 million Euros, whichever is greater.
  • Risk reputational damage by receiving attention for non-compliance. The first companies to be penalized are more likely to receive significant media coverage for their noncompliance. 

There may be legal challenges to GDPR regarding applicability to non-EU companies 

This is a new, unprecedented law. The previous European data privacy law, the Data Protection Directive, was implemented in 1998, and was much narrower in scope.  The GDPR’s applicability and requirements are vast, and non-EU companies are likely to bring legal challenges in terms of its applicability to them. 

Who to contact with questions

Should you have any questions concerning the General Data Protection Regulation, please contact Matthew A. Heinle, Esq. (maheinle@bmdllc.com), who is a partner at Brennan, Manna & Diamond.

 

[1] General Data Protection Regulation, https://gdpr-info.eu/.

DOL Proposes New Rule Regarding Independent Contractor Status - But How Will the Election Affect Its Future?

On September 22, 2020, the U.S. Department of Labor announced a new proposed rule regarding employee and independent contractor status under the Fair Labor Standards Act. The full text of the proposed rule is available here. The rule's drafters intend to reduce uncertainty and enhance the precision and predictability of the long-standing "economic reality" test, which currently relies on a multifactor balancing test.

Major Change to Franklin County, Ohio Eviction Process: Landlord Testimony Required

Although there is currently a nationwide temporary halt on all residential evictions through December 31, 2020 in place, the eviction process in Franklin County – which processes the highest number of evictions in the State of Ohio at approximately 18,000 a year – recently changed significantly.

UPDATE: Governor Dewine Signs HB 606 Granting Short Window of Immunity from COVID-19 Personal Injury Lawsuits

The Ohio General Assembly, in Am. Sub. H.B. No. 606, is in the final stages of passing a law that will prohibit lawsuits seeking damages from COVID-19. This includes injury, death, or loss to person or property if the lawsuits are based, in whole or in part, on the exposure to, or the transmission or contraction of the coronavirus, unless the defendant in the lawsuit acted intentionally or recklessly. In circumstances where this immunity does not apply, H.B. 606 prohibits such claims being aggregated and brought as a class action.

Revised Department of Labor FFCRA Guidance, Effective September 16, 2020

In response to attacks on the legality of the Department of Labor’s (“DOL”) Final Rule regarding the Families First Coronavirus Act (“FFCRA” or the “Act”), which took effect in April 2020, the Department of Labor issued new guidance on Friday, September 11th to formally address ongoing questions and concerns related to the COVID-19 legislation.

FCC Adds $198 Million to Strengthen Telehealth for Rural Healthcare Providers

The Federal Communications Commission (“FCC”) has added an additional $198 million in funding to its Rural Health Care Program. These funds will be used to increase broadband services and telecommunications to bolster telehealth/telemedicine services for rural healthcare providers. Funding for rural healthcare providers was initially capped at $605 million in 2020, but the added funds will now allow the FCC to provide over $800 million to eligible providers.