On February 2, 2016, the European Commission announced that it had reached an agreement in principle with the United States on a new framework for data transfers.


This new EU-US Privacy Shield is necessary because of the October 2015 Court of Justice of the European Union decision which invalidated the Safe Harbour arrangement (discussed in further depth in this previous article).


On February 29, 2016, the European Commission released a draft “adequacy decision” and the legal text for the new agreement. The adequacy decision establishes that the safeguards under the Privacy Shield will offer equivalent data protection standards to those in place in the EU.


Under the new arrangement, there will be stronger supervision and enforcement mechanisms. The US Department of Commerce will actively search for non-compliant organizations, validate an organization’s self-certification, and publicly post Privacy Shield violations. An organization’s commitments will be enforceable under US law by the Federal Trade Commission, and companies that do not comply with their commitments will face sanctions.


The US has also given the EU written assurances that US government access to personal data from the EU will be subject to clear limitations, safeguards, and oversight mechanisms. There will be an annual joint review by both the European Commission and the US Department of Commerce to monitor this arrangement. The new agreement will also include several avenues for EU citizens to file complaints if they feel their personal data has been misused.


The EU-US Privacy Shield is not yet finalized or in force. The next step is a consultation by a committee of representatives from the EU member states and Data Protection Authorities, before a final decision is reached by the College of Commissioners. It will be interesting to see the opinions of the committee members and how this process continues to play out.


For more information:

Crystal O’Donnell: crystal@discoverycounsel.ca

Candice Chan-Glasgow: candice@discoverycounsel.ca



This article is made available by Heuristica Discovery Counsel Professional Corporation for educational purposes only as well as to give you general information and a general understanding of the law, not to provide legal advice. The article should not be used as a substitute for competent legal advice from a licensed lawyer in your jurisdiction.

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