Monthly Archives: June 2023

GDPR Turns 5, and Trans-Atlantic Data Flow Remains a Headache

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Happy birthday to the GDPR, who has turned 5 years old on May 25, 2023! Is the European Union (and, given the Brussels effect, perhaps the entire world) a better place than pre-GDPR? This is a difficult question. Surely there has been a lot more focus on data protection by companies. And one of the reasons why companies have attempted to comply (100% compliance appears to be an unachievable goal!) is the possibility of being sanctioned with “administrative fines up to 20 000 000 EUR, or in the case of an undertaking, up to 4 % of the total worldwide annual turnover of the preceding financial year, whichever is higher“. Clearly, while the very same GDPR language applies throughout the EU, data protection legislation is not yet harmonised, not even 5 years after its entry into force. About 30 articles of the GDPR allow Member States to depart from it. Interpretations of the Regulation also vary, so in many areas uniformity has given way to diversity (which, in this case, is not ideal).     Additionally, enforcement of the GDPR is entirely decentralized and data protection authorities have different views, differing resources and different strategies. A list of GDPR sanctions is regularly updated and since the Meta decision of May 22, 2023, the Irish Data Protection Commission has emerged as the champion. While it was previously criticized for “being too cozy to Big Tech”, it has issued the highest ever sanction, along with strong measures ordering Meta to stop further transfers of personal data from the EU to the US and to bring its processing operations of data already transferred to the US into compliance with the GDPR. The problem, once again, stems from the trans-Atlantic data flow from the EU to the US, and from the concerns that such EU personal data is subject to surveillance in the US, without any redress system for EU citizens. (Incidentally, thousands of companies, like Meta, may have the same problem).  The US and EU have yet to reach an agreement that would allow a safe flow of data (although there are hopes that progress will be achieved by July). Further, there is no guarantee that the European Court of Justice will not strike down any such new arrangement, like it did in the past (twice). Meanwhile, the post-GDPR world appears to strongly push towards data localization (or “sovereign cloud”), making data flows out of the EU to non-“adequate” countries very scary.