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US-EU Safe Harbor invalidated by European Court of Justice

On Oct. 6, the European Court of Justice (ECJ) released its judgment on the US-EU Safe Harbor case, ruling that national Data Protection Authorities (DPAs) in the European Union (EU) retain the right to investigate complaints relating to the Safe Harbor, and declaring the Safe Harbor itself invalid.

The EU has high standards for privacy and data protection, and the transfer of data from the EU to another jurisdiction is permitted only if the receiving jurisdiction has “adequate” data privacy laws. U.S. data protection laws are not deemed adequate by the EU. Given the need of multi-national businesses to transfer data from the EU to the U.S., the European Commission (EC) in 2000 endorsed the Safe Harbor regime, a streamlined and cost-effective means for companies to voluntarily commit to a certain level of data protection in order to transfer personal data from the EU to the U.S. The case before the ECJ originated from a complaint by an Austrian citizen to the Irish Data Protection Commissioner on the heels of Edward Snowden’s exposure of the U.S. National Security Agency’s surveillance programs, arguing that the U.S. offered no real protection against data surveillance. The complainant sought to prevent transfers of personal data from the Irish server of a social networking company to the company’s servers in the U.S., but was refused by the Irish Data Protection Commissioner, who stated that he was bound by the EC’s decision that the Safe Harbor provides adequate personal data protection for such transfers. When the complainant appealed this decision, the Irish High Court made a preliminary reference to the ECJ.

The ECJ emphasized the importance of protecting EU privacy rights as guaranteed in the EU Data Protection Directive and the European Convention on Human Rights. The ECJ found that the EC decision does not prevent DPAs in Member States from exercising their powers of intervention, nor does an EC decision reduce national authorities’ duty to assess compliance with EU data protection rules when it comes to the transfer of personal data to the U.S. Moving beyond the referred question, the ECJ further noted that U.S. law – which requires companies to disregard the protective rules laid down by the Safe Harbor where they conflict with U.S. national security and public interest – did not provide effective data protection, and that as a result the Safe Harbor regime compromises the fundamental right to privacy.

The decision will have significant impact on the companies currently relying on the Safe Harbor to comply with EU law regarding their EU-to-US data transfers. Please see our recent GT Update for our recommendations and for options to adopt one of the other mechanisms accepted by EU authorities for legally transferring data from the EU to the U.S. (or other countries deemed to have inadequate data protection laws). On Oct. 26, German privacy officials issued a position paper (in German only) explaining their take on the ECJ judgment and its consequences for data transfers. For further information, see our analysis of the position paper.
New German bill for youth protection treaty
On Oct. 9, the German States agreed upon a new bill for the Interstate Treaty on the Protection of Minors in the Media (Jugendmedienschutzgesetz – JMStV), aiming at improving the regulatory framework for the protection of minors using media. The bill will now be discussed in the State parliaments until December. At the same time, the German Federal Government has issued a detailed discussion paper regarding a re-design of the existing youth protection rules.

The current youth protection regulations, which consist of 50 provisions in two separate codifications – the current JMStV and the Youth Protection Act (Jugendschutzgesetz – JuSchG) – has been widely criticised as being antiquated and ineffective, in particular as it provides distinctly different rules for online and offline media. The aim of the new regulatory framework is to unite and consolidate the rules in order to address these concerns, and to adapt them to the current media landscape. In addition, the rules are expected to abolish several (albeit not all) of the privileges granted to public broadcasters, like ARD and ZDF. For instance, the new regulations allow complaints against alleged infringements committed by public broadcasters.
EU launches consultation on the review of the EU Satellite and Cable Directive
On Aug. 24, the EU launched a public consultation as part of a broader review of the 1993 EU Satellite and Cable Directive, one of the 16 initiatives announced in the Commission's plan for the Digital Single Market (DSM). The Commission wants to know whether EU rules defining where and how satellite broadcasters and cable companies should clear copyright are up-to-date, and the impact of extending these rules to cover services (including TV and audio) provided over the Internet.

The Satellite and Cable Directive outlines how and where (i.e., in which member state of the EU) satellite broadcasters and cable companies should acquire the necessary copyright and related rights. It aims at improving the cross-border transmission and reception of broadcasting services. The last review of the Directive took place in 2002. Now, as part of its DSM strategy, the Commission intends to remove barriers and enhance cross-border access to broadcasting and related online services across the EU. The Commission welcomes feedback from consumers, public authorities, broadcasters, authors, audio-visual and record producers, performers, collective management organizations, satellite and cable operators, Internet and online service providers, and any other interested parties until Nov. 16. At the same time, the Commission is conducting a study to assess the relevance of the Directive as well as the legal and economic aspects of the evolving broadcasting landscape. The study will feed into the Directive review and be published in spring 2016.

Earlier this year, the Commission sought input on how to make Europe's audio-visual media landscape fit in the digital age during a related consultation on the Audio-Visual Media Services Directive (AVMSD), which ended Sept. 30.
Movie theater figures for first half of 2015 show record revenues and significant plus in moviegoers
On Aug. 11, the German Federal Film Board (FFA) published (in German only) the half yearly movie theater figures, which proved to be a superb first half year of 2015 for German cinema. For the first time, the overall revenue crossed the half-billion mark at EUR 545 million. This is a 21.1 percent increase compared to the first half of 2014 (EUR 449.9 million). The number of moviegoers showed an increase of 18.8 percent, from 56.2 million in the first half of 2014 to 66.8 million. The highest grossing German film was Til Schweigers “Honig im Kopf,” which drew 6.9 million moviegoers in total (5.9 million in the first half of 2015).