In a ruling, the European Court of Justice has annulled the Privacy Shield between the United States and the European Union. This decision has far-reaching consequences for data protection in Europe.
What is the EU-US Privacy Shield
According to the GDPR, only data transfer within the EU or in the EEA (Iceland, Lichtenstein, Norway) is unproblematic. However, if personal data are to be transferred to a third country, the General Data Protection Regulation requires that there is a comparable level of data protection in the recipient country. The Privacy Shield was an agreement between the US and the EU to ensure this level of data protection and replace the Safe Harbour regulation, which was eventually invalidated as well. href=”https://www.privacyshield.gov/”>Privacy Shield certified companies could receive personal data from EU without additional legal measures.
Data transfer to third countries
Under the GDPR, data transfer to third countries is only possible under the following conditions :
- The EU has adopted adequacy decisions (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 rules within a company or group of companies
- Standard data protection clausesadopted by the Commission in accordance with the examination procedure referred to in Article 93 (2)
- Code of conductapproved by the supervisory authority
- Code of conductapproved by the supervisory authority
The Privacy Shield had the advantage that – almost like an adequacy decision – the data could be processed without further legal hurdles.
Impact of the invalidation of the EU-US Privacy Shield
The decision of the European Court of Justice has a major impact on 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 which implemented the Privacy Shield. If these contents are integrated on your own website, data transfer is to the USA will happen. By invalidating the Privacy Shield, using these services is no longer legitimised 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 other appropriate safeguards.
If of the person concerned consents the transfer is possible. However, consent must be voluntary, understandable and revocable. For this purpose, it is not enough that you inform the visitor about the transfer in your privacy policy. The consent must be established BEFORE the transfer.
Consider replacing software from the US with software from the EU.
Standard Contractual Clauses
Another, previously largely unrespected option of safeguarding the data transfer to the USA are standard contractual clauses approved by EU.
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.
Websites Solutions
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 technology provided free of charge by the german HEISE-Verlag. In Shariff, the external content is also packed in a 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 disrupts the direct connection between the website visitor and the external service.
Instead of embedding Youtube content directly, you should display a screenshot of the video and connect to Youtube only when after a click. This method also speeds up the site. For Youtube videos in WordPress, the plugin WP Youtube Lyte implements this method.
Privacy Policy
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.
Conclusion
Running a website without external content is almost impossible nowadays. Many of the most popular services are located in the United States. However, in order to comply with the GDPR requirements, you must legitimize this data transfer. After invalidation of the Privacy Shield, you need to implement one of the above-mentioned measures to be allowed to do this transfer.
EasyGDPR supports you with our new data protection declaration generator.