Friday

12th Aug 2022

US firms face possible sanctions over Safe Harbour

  • Washington: the EU Court's decision on Safe Harbour is retroactive (Photo: prameya)

US firms that relied solely on a now defunct data-sharing pact with the EU could end up facing sanctions from national data protection authorities.

Known as Safe Harbour, the 15-year-old pact was declared invalid on Tuesday (6 October) by the European Court of Justice in Luxembourg.

Read and decide

Join EUobserver today

Become an expert on Europe

Get instant access to all articles — and 20 years of archives. 14-day free trial.

... or subscribe as a group

An EU official on Wednesday (7 October) said the decision is retroactive.

This means that all transfers of data from the EU to the US under the regime were illegal since 2000.

“When the Court declares an act of the union institution such as the Safe Harbour invalid and doesn’t say anything else, it means indeed the decision is gone as if it had never existed. Which means also of course that transfers, which don’t have any other legal basis, should not have been made”, the official told reporters.

A second EU official said a company will have to prove, at the moment of the transfer, that it had a number of other guarantees “that showed compliance with the European data protection rules”.

A third EU official said if the company did not show other forms of compliance and if harm had come to the individual as a result, it could face penalties.

The legal complexity is vast, due in part, to a clause in the scheme that had also allowed US laws to overrule Safe Harbour.

“This is a big problem for European rights if you can just overrule the agreement”, said Franziska Boehm, an assistant professor at the German-based Institute for Information, telecommunication and media law.

Boehm, who drafted a European Parliament report on Safe Harbour and had a submitted a review of it to the European Court, said the pact had allowed US intelligence access to the data despite EU protection rules.

Around 4,400 US firms had signed up to the self-certification scheme, which was seldom enforced by the US federal trade commission. According to one independent study, hundreds had even lied about belonging to it.

Big US companies like Facebook use Safe Harbour.

Facebook told AFP in an email that "it is imperative that EU and US governments ensure that they continue to provide reliable methods for lawful data transfers and resolve any issues relating to national security".

The case heard in Luxembourg is rooted in a complaint against Facebook Ireland by Austrian privacy campaigner Max Schrems.

He argued in 2013 that Facebook Ireland could not guarantee his data was protected under Safe Harbour following US mass surveillance revelations from whistleblower Edward Snowden.

Ireland’s data protection authority at the time rejected his case because Facebook was in Safe Harbour. Schrems appealed and the case went to the Luxembourg-based Court.

Ireland’s court will now have to decide whether to suspend Facebook’s transfer of data to the US.

The Irish data protection commissioner Helen Dixon has since said that the ECJ “judgement extends far beyond the case presently pending in Ireland.”

EU imposes deadline for new US data pact

The European Commission is using the European Court of Justice ruling on Safe Harbour as a leverage to get a new deal with American authorities.

EU gives thumbs up to US data pact

Commission gives 'thumbs-up' to controversial Privacy Shield deal with US on data sharing after a year's operation - but notes room for improvement.

Opinion

The Digital Services Act — a case-study in keeping public in dark

Companies and lobby groups like Spotify, Google and International Federation of the Phonographic Industry (IFPI) were able to lobby member states using live knowledge of the trilogue discussions on content-ranking systems, advertising and liability for search engines.

Stakeholder

The CPDP conference wants multidisciplinary digital future

During the Computers, Privacy and Data Protection (CPDP) conference, many high-level discussions will touch upon the dynamics of decision-making in the design of new technologies, including the importance of inclusion, diversity, and ethics perspectives within these processes.

Stakeholders' Highlights

  1. EFBWW – EFBH – FETBBConstruction workers can check wages and working conditions in 36 countries
  2. Nordic Council of MinistersNordic and Canadian ministers join forces to combat harmful content online
  3. European Centre for Press and Media FreedomEuropean Anti-SLAPP Conference 2022
  4. Nordic Council of MinistersNordic ministers write to EU about new food labelling
  5. Nordic Council of MinistersEmerging journalists from the Nordics and Canada report the facts of the climate crisis
  6. Council of the EUEU: new rules on corporate sustainability reporting

Latest News

  1. Defying Russian bombs, Ukraine football starts new season
  2. Sweden to extradite man wanted by Turkey
  3. EU must beware Beijing's new charm offensive
  4. Forest fire near Bordeaux forces over 10,000 to flee
  5. Estonia and Latvia sever China club ties
  6. Russian coal embargo kicks in, as EU energy bills surge
  7. Only Western unity can stop Iran hostage-diplomacy
  8. Kosovo PM warns of renewed conflict with Serbia

Join EUobserver

Support quality EU news

Join us