With many of us so busily focused on compliance with the European Union’s General Data Protection Regulation (“GDPR”) – and probably soon to be focused on the new California Consumer Privacy Act – it is easy to neglect (albeit inadvertently) other areas of the world. If you are a company with international operations or are collecting the personal information of non-EU foreign residents, this could be a costly mistake.
To date, over 120 countries have some form of data protection laws. Just this year alone, a number of countries have passed their own GDPR versions of law. The most recent is the Brazilian Data Protection Law, enacted this month with an effective date in February 2020. The new Brazil law strongly mirrors the GDPR, including consent or other legal grounds for the processing of personal information (which term is broadly defined), cross-border data transfer restrictions, data subject rights, mandatory data breach reporting obligations, joint and several liability for data controllers and processors, and penalties and fines up to 2% of earnings or just under $13 million. Previously, Brazil only had sectoral laws in place, so this is a big change for many companies.
Brazil is not alone. Whether by accident or by design, there has been a flurry of activity this summer in the wake of the GDPR implementation. Other countries adopting new data protection laws and regulations this year include Algeria (in July) and St. Kitts and Nevis (in May). And, in June, Chile went so far as to make protection of personal information a Constitutional right! What these laws all have in common is the establishment of obligations with respect to the collection, retention, use, disclosure, and transfer of personal information, as well as setting data subject rights and breach response requirements. While not being as aggressive as its peers, China did adopt a non-binding “specification” in May on personal information security, which provides guidance on the collection, retention, use, sharing, and transfer of personal information, as well as breach notification best practices. And Kenya, India, Uzbekistan, and Iran are all positioned to follow the trend with their respective releases in July and August of draft comprehensive data protection legislation (of particular interest, the Kenya proposal includes a 5-year prison term for violations).
As a friendly reminder, Canada’s Digital Privacy Act, which amends the well-known PIPEDA (“Personal Information Protection and Electronic Documents Act”) to provide new breach reporting requirements, is set to become effective on November 1, 2018. Thus, it is incumbent upon companies operating outside the confines of the United States’ territorial limits to stay abreast of these world developments and adjust accordingly.