European Union: Keeping It Private: GDPR And Developments In Data Privacy In 2018

By any measure, 2018 was a major year for data privacy regulation. The most significant regulatory development in this area was the European Union's General Data Privacy Regulation ("GDPR"), which went into effect on May 25, 2018 and establishes what is probably the most rigorous data protection regime currently in existence. As adopted, GDPR includes numerous restrictions on the use of individual personal data, coupled with an expansive extraterritorial reach that makes compliance with its provisions a concern for many business who maintain even relatively minor connections with the European Union. Also in 2018, the State of California enacted the California Consumer Privacy Act ("CCPA"), which establishes a data protection regime that is in many ways inspired by GDPR and will come into effect on January 1, 2020.

GDPR and the heightened restrictions it establishes regarding the use of personal information will have a major effect on insurance industry participants that are subject to GDPR and to regulatory initiatives in other jurisdictions, such as California, that choose to adopt a similar framework. The collection and use of personal information is a core business practice of the insurance industry worldwide. Personal information is obtained by insurance companies, agents, brokers and other service providers in order to design, underwrite and distribute insurance products and services to consumers. Consequently, a data protection regime that could restrict such entities in accessing and processing personal information would require significant reevaluation of their foundational operational practices.

The General Data Privacy Regulation

GDPR is the result of a multi-stage negotiation process among the members of the European Union, originally proposed by the European Commission to replace the 1995 European Directive (95/46/EC) (the "Directive"), which set out the previously existing data protection regime for the European Union. Adopted by the European Parliament and the Council of the European Union on April 14, 2016, GDPR became enforceable on May 25, 2018. As a regulation (as opposed to a directive) it is directly binding and applicable in all Member States of the European Union.2

GDPR defines personal data as "information relating to an identified or identifiable natural person,"3 and establishes a number of protections for and restrictions on use and transfer of such personal data. Crucially, GDPR sets a very low bar for what is considered "identifiable": if a natural person can be identified using "all means reasonably likely to be used,"4 the information would be considered "personal data." Accordingly, data may be considered personal data even if the entity holding such data cannot itself identify the natural person to whom such data pertains. Indeed, the name of a natural person would not be required to establish that information is "personal data" – any identifier, including an identification number, location data, online identifier or other similar factor may be considered an identifying factor for a natural person.

While the GDPR includes many requirements, most relevant to insurers may be the significantly enhanced rights provided to individuals, and these enhanced rights are coupled with specific provisions that make it easier for such individuals to claim damages for compensation for violations of such rights. These rights include, with exceptions: (i) a right to access personal data in a concise, transparent and easily accessible form; (ii) a right in certain circumstance to have personal information erased ; (iii) a right to receive or have transmitted to another controlling entity all personal data concerning them in a structured, commonly used and machine-readable format; (iv) a right to object to the processing of personal data; and (v) a right not to be subject to automated decision making processes, including profiling.

As a practical matter, the extremely expansive definition of "personal data" means that organizations that must comply with GDPR will need to institute compliance practices across a far wider range of data processing and utilization practices than ever before. Further, even if an organization is not established within the European Union, it can still be subject to GDPR if it processes the personal data of individuals who are in the European Union where the processing activities are related "to the offering of goods or services"5 to such individuals in the European Union or "the monitoring of their behavior"6 to the extent that their behavior takes place within the European Union.

In order to comply with GDPR, organizations need to be in a position to affirmatively demonstrate to supervisory authorities and data subjects that they have affirmatively complied with the relevant provisions of the regulation. GDPR particularly sets out enhanced governance obligations, including requirements to: (i) keep a detailed record of processing operations; (ii) provide a fair processing notice to individuals whom personal data is being processed about that explains the purposes and legal basis of the processing as well as other information; (iii) perform data protection impact assessments for high risk processing; (iv) designate a data protection officer to advise on compliance with GDPR and generally monitor data protection efforts; (v) maintain a comprehensive record of data breaches, including notifying individuals where necessary; (vi) impose specific contractual requirements on third parties that personal data is shared with; and (vii) implement "data protection by design and by default."7

The California Consumer Privacy Act and the Consequences of GDPR in the United States

While its expansive territorial scope may make compliance with GDPR a top priority for large multinational holding companies (including those based in the United States), such companies will now need to consider privacy legislation adopted in the United States as well.

On June 28, 2018, the CCPA was enacted in California, and comparisons were immediately drawn to the GDPR. For purposes of the CCPA, "personal information" is defined as "information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household,"8 a definition that has a similar broad scope to the definition utilized by GDPR.

The CCPA, like GDPR, imposes a number of restrictions on organizations beyond the physical borders of California, including on any organizations that control personal data and do business in California, albeit only subjecting those organizations to the extent that they process data of California residents. However, unlike GDPR, the CCPA has not set out any principles regarding the lawful processing of personal data – though given how recently the CCPA was passed and its effective date of January 1, 2020, there is a significant likelihood that California regulatory authorities, including the Attorney General, may issue guidance on this point. Indeed, the CCPA requires the Attorney General to issue regulations implementing certain of its provisions (for example, instructing how businesses can "reasonably verify" consumer requests) and authorizes the adoption of additional regulations as necessary to further the CCPA's purposes.

Similarly, the CCPA grants consumers who are California residents a number of rights, some of which are broadly analogous to the rights established by GDPR, including (with certain exceptions): (i) a right for consumers to receive affirmative disclosures from organizations covered by the CCPA of such organizations' sale, collection or disclosure of such individuals' personal information, and the requirement that such organizations respond to requests for information from such individuals; (ii) a right for consumers to access specific pieces of information collected about them by an organization; (iii) a right for consumers to request the deletion of their personal information from organizations that hold such information; (iv) a right for consumers to opt-out of the sale of personal information to third parties; and (v) a right of consumers not to be subject to discrimination for exercising their rights under the CCPA. The Attorney General may sue to enforce these rights, although private citizens may only sue to redress the unlawful exfiltration or disclosure of very limited categories of personal information (name, social security number, driver's license number and certain financial, medical and health insurance information).

In addition, a number of states have updated their data breach notification laws in the months following the effective date of GDPR, including Alabama, Arizona, Louisiana, Oregon and South Dakota. This would seem to indicate the growing importance of data privacy concerns to governmental authorities throughout the United States.

Likely Effects of GDPR in 2019 and Beyond

There is a significant likelihood that GDPR, with its increased protections for consumers, could reset the standard for how businesses, including insurance industry participants, handle personal data. Further, if protections of the type established by GDPR and the CCPA are adopted more widely, it is likely that individuals will become more aware of the advantages afforded to them by businesses that are compliant with those protections and may choose (to the extent feasible) to provide their data to those businesses rather than to businesses that are not obligated to provide GDPR-style protections. Another potential consequence is that standard contracts customarily used throughout industries would need to be revisited with an eye towards compliance with an enhanced data privacy regime, including reexamination of commercial terms given the increased costs of compliance with and higher risks of non-compliance under such a regime.

Ultimately, laws such as GDPR represent a paradigm shift for data-centric industries, like insurance, which are anchored in the use of personal information. While many insurance industry participants have begun to adjust for the increased restrictions of GDPR, these regimes present more than cosmetic legal and compliance challenges, but require companies to overhaul their thinking on the way that they collect, process, store, share and discard personal data. If regimes similar to GDPR and the CCPA are adopted more widely, basic services provided by insurance companies, agents, brokers and other service providers, down to the issuance of policies and processing of claims, will have to be reevaluated in the light of the enhanced protections for personal data and increased consent rights for individuals. Although it remains to be seen whether and to what extent lawmakers and regulators in the United States and other non-EU countries will adopt GDPR-like laws and regulations, companies would do well to remain attuned to and anticipate the changing regulatory environment that is increasingly sensitive to safeguarding the privacy of personal data. It will also be important for industry representatives to engage with their legislators and regulators in order to have a voice in shaping future legislative and regulatory initiatives.

Footnotes

1 Larry Hamilton leads Mayer Brown's US insurance regulatory practice within the Insurance Industry group. He advises insurance companies, insurance agencies and investment companies on a broad range of regulatory matters, including those associated with formation, licensing, portfolio investments, reinsurance, e-commerce, cybersecurity and outsourcing. He is also a member of Mayer Brown's Cybersecurity & Data Privacy practice. Charles-Albert Helleputte is a transactional and cyber security and data privacy lawyer. In the transactional context, he focuses his practice on domestic aspects of cross-border transactions, acquisitions, disposals, restructurings, financing and refinancing. Charles heads the cyber security and data privacy team in Brussels. Sanjiv Tata is an associate in Mayer Brown's New York office and a member of the Corporate & Securities practice, specializing in insurance regulatory work. Sanjiv advises insurance companies, insurance intermediaries and investment companies with respect to a broad range of insurance regulatory and corporate matters, including formation and licensing of insurance companies, mergers and acquisitions of insurance companies, reinsurance transactions, and enforcement, corporate governance, cybersecurity, enterprise risk and general compliance matters.Oliver Yaros is a partner in the Intellectual Property & IT Group as well as the Technology Transactions and Cybersecurity & Data Privacy Practices of the London office of Mayer Brown. He advises clients on technology and outsourcing transactions with a particular focus on fintech and digital transformation projects, as well as clients operating within a broad range of sectors on data protection matters and cybersecurity incidents, intellectual property transactions and related issues. Kendall Burman is a Cybersecurity & Data Privacy counsel in Mayer Brown's Washington DC office. Kendall advises a broad range of clients, including financial services and technology companies, on legal, regulatory, and policy issues involving emerging technologies, security, privacy, and the flow of information across borders. Diletta is an associate in the Brussels office. Her practice focuses on privacy and cyber security. Diletta advises clients regarding a wide range of global data privacy and security issues. She assists organizations in complying with EU and national privacy laws, including developing global data transfers mechanisms, privacy statements, data breach notification policies and procedures, etc. Diletta regularly publishes articles on those matters and is a speaker on such topics. Evan Wooten is an experienced civil litigator, focusing on privacy, consumer class action defense and actions by public officials and public enforcement bodies. Evan also assists clients in crafting contracts, policies, and terms of use to minimize litigation and government investigations. Evan is a member of Mayer Brown's consumer class action and commercial law groups and co-chairs the editorial team for the Firm's privacy and security newsletter and publications.

2 As of July 20, 2018, GDPR was also adopted by the three of the four nations in the European Free Trade Association - Iceland, Lichtenstein and Norway.

3 Art. 4 of GDPR.

4 Recital 26 of GDPR.

5 Art. 3(2)(a) of GDPR.

6 Art. 3(2)(b) of GDPR.

7 With respect to this last point, Article 25 of GDPR introduces the dual concepts of "data protection by design and by default." "Data protection by design" requires organizations to take into account the risks that could be presented to protecting an individual's personal data during the process of designing and implementing a new process, product or service. "Data protection by default" requires organizations to put in place mechanisms to ensure that, by default, only personal data that is strictly necessary for specific purpose is processed.

8 CAL. CIV. CODE § 1798.140.

Visit us at mayerbrown.com

Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2019. The Mayer Brown Practices. All rights reserved.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Akin Gump Strauss Hauer & Feld LLP
Ropes & Gray LLP
 
In association with
Practice Guides
by Mondaq Advice Centers
Relevancy Powered by MondaqAI
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Akin Gump Strauss Hauer & Feld LLP
Ropes & Gray LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions