In a ruling, the European Court of Justice has declared the Privacy Shield between the USA and the European Union invalid. This decision has far-reaching consequences for data protection in Europe.
Privacy Shield background
In principle, according to the GDPR, only data transfer within the EU or the EEA (Iceland, Lichtenstein, Norway) is unproblematic. However, if personal data is to be transferred to a third country, then the General Data Protection Regulation requires that there is a comparable level of data protection in the recipient country as in the EU. Only then is a transfer legitimized by law. The Privacy Shield was an agreement between the U.S. and the EU that was supposed to ensure this level of data protection and replaced the Safe Harbour regulation, which was also overturned at the time. Personal data was thus allowed to be transferred to Privacy Shield certified U.S. companies.
Data transmission to third countries
According to the GDPR, data transfer to third countries is only possible under the following conditions:
- The EU has adopted an adequacy decision (Andorra, Argentina, Canada, Faroe Islands, Guernsey, Israel, Isle of Men, Japan, New Zealand, Switzerland, Uruguay).
- A legally binding document between authorities (such as the now invalid EU-US Privacy Shield)
- Binding internal data protection regulations within a company or group of companies
- Standard data protection clauses adopted by the Commission in accordance with the examination procedure referred to in Article 93(2)
- Rules of conduct approved by the supervisory authority
- Contractual clauses, which are those approved by the Authority.
The Privacy Shield had the advantage that – almost like an adequacy decision – data could be processed without further legal hurdles.
The decision of the European Court of Justice has major implications for the Internet. A variety of popular online services such as YouTube, Google Maps, Google Analytics, Facebook Social Plugin, Twitter, etc. are provided by US companies that had implemented the Privacy Shield. If this content is integrated into your own website, then a data transfer to the USA is compulsory. With the overturning of the Privacy Shield, this inclusion is no longer legitimized by a treaty between the EU and the US.
Alternatives to the Privacy Shield
If the destination country does not have an appropriate level of data protection, the transfer must be legitimized by another legal basis.
Consider replacing software from the US with software from the EU.
Standard Contractual Clauses
Another option for legally safeguarding data transmission to the USA, which has been largely ignored to date, is the so-called standard contractual clauses.
If you enter into a contract with an American service provider including these standard contractual clauses, data transfer to the USA is possible. Please note that you have to agree on these standard contractual clauses with each service provider used. For example, the newsletter provider “Mailchimp” has offers contracts including the standard clauses for years. On the other hand Google just offered this option only after the failure of the Privacy Shield.
Solutions for websites
Resources loaded from other websites (Google Fonts,…) should be embedded directly in your own website. This eliminates data transfer to the USA while loading these resources.
For links to Facebook and other social media, a 2-Click solution is a useful alternative. Here the external content (e.g. the Facebook Like button) is surrounded by a container. The Facebook button does not load when the website is accessed. Only after the user clicked on the container, the data is transferred to the external Provider. This means that only the data from users who want to interact with Facebook is transferred to Facebook.
A similar solution is Shariff, an open source solution provided free of charge by heise-Verlag. Here, the external content is also packed into a kind of container. In contrast to the 2-Click solution, the content is still immediately visible without the visitor data being transferred to an American server. Shariff breaks the direct connection between the website visitor and the external service for this purpose.
When embedding videos, instead of embedding Youtube content directly, for example, it is recommended to display a screenshot of the video and only connect to Youtube when you click on this screenshot. This method also speeds up the website. For Youtube videos in WordPress, the WP Youtube lyte plugin takes care of this task.
Due to the invalidation of the Privacy Shield (almost), all data protection statements need to be adapted. Please check your privacy statement on the website and replace the references to the Privacy Shield.
Running a website these days without external content is nearly impossible. However, many of the most popular services are located in the USA. However, to comply with the GDPR requirements, you must legitimize this data transfer. Regardless of whether you prefer to rely on technical or organizational measures, after the Privacy Shield overturns, you should respond as quickly as possible and comply with these new requirements.