[Gnso-epdp-legal] Action items from EPDP Phase 2 Legal Committee meeting at ICANN66

Fri Nov 15 16:07:04 UTC 2019

Hi all,
here is the latest development on this issue:
https://edpb.europa.eu/sites/edpb/files/files/file1/edpb_guidelines_3_2018_territorial_scope_after_public_consultation_en.pdf
Apparently the EDPB (not the EPDP) has just this week published a set of
guidelines regarding the territorial scope of the GDPR.
This may make for some interesting reading and make the question redundant,
so I urge the members of this team to review it.
-- 
Volker A. Greimann
General Counsel and Policy Manager
*KEY-SYSTEMS GMBH*

T: +49 6894 9396901
M: +49 6894 9396851
F: +49 6894 9396851
W: www.key-systems.net

Key-Systems GmbH is a company registered at the local court of
Saarbruecken, Germany with the registration no. HR B 18835
CEO: Alexander Siffrin

Part of the CentralNic Group PLC (LON: CNIC) a company registered in
England and Wales with company number 8576358.

On Wed, Nov 13, 2019 at 4:37 PM Becky Burr <becky.burr at board.icann.org>
wrote:

> Some observations on ECJ's decision on Google right to be forgotten case
> in order to kick off our discussion on the proposed question.  For an
> American lawyer, the ECJ's analysis is difficult to parse, but here's my
> takeaway:
>
>    1. Although the case arose prior to GDPR's effective date, the court
>    clearly analyzes the situation under both the Directive and the Regulation.
>    2. The discussion focuses substantively on consideration of the rights
>    derived from Article 12 and 14 of the Directive (erasure and objection =
>    right to be forgotten as interpreted by courts) and arising under Article
>    17 of the Regulation (erasure/right to be forgotten) and describes its job
>    (question presented) as being to "determine the territorial scope which
>    must be conferred on a dereferencing ..."
>    3. The decision does speak generally about the need to balance an
>    individual's fundamental privacy rights against other fundamental rights,
>    applying the principle of proportionality, so I don't think it is entirely
>    fair to say that it has *no* application outside of the right to be
>    forgotten context.  Here the court seems to be saying that the balance, in
>    the context of erasure, may come out in different ways depending on where
>    the information is available (within the Union/outside the Union).  And the
>    fact that many countries don't recognize a right to be forgotten is part of
>    that balance.  It's not clear from the decision whether or how this would
>    apply outside the erasure context.
>    4. The court concluded that Google was not required to de-reference
>    the data outside of the EU so long as it took meaningful steps to prevent
>    (or at least discourage) EU-based searchers to access the material through
>    geo-fencing.
>    5. There's no suggestion that I could find that google.fr or google.de
>    could continue to provide links to the data to a searcher using a non-EU IP
>    address.
>
> Is this correct?  And, for the sake of discussion, let's assume that the
> fact that some countries don't recognize a right not to have public
> whois should be part of the balance - but under the facts here, only with
> respect to access by users outside of the EU that is provided by Contracted
> Parties establishments located outside the EU.  What would that mean in our
> situation?  Would it change the balance to be applied by registries and
> registrars established exclusively in the EU or with respect to the in-EU
> processing activities of global registries/registrars?  If not, what are
> the implications and, based on the conclusions reached by the epdp to date,
> do we want to spend some of our legal budget on asking the question?
>
>
>
> On Tue, Nov 5, 2019 at 5:34 PM Caitlin Tubergen <
> caitlin.tubergen at icann.org> wrote:
>
>> Dear EPDP Phase 2 Legal Committee,
>>
>>
>>
>> Please find below a list of action items from yesterday’s Phase 2 Legal
>> Committee meeting.
>>
>>
>>
>> *ACTION ITEMS*
>>
>>
>>
>> *SSAD Questions under Discussion:*
>>
>>
>>
>>    1. *Q11*: Brian, Margie, Thomas, and Volker to work together on
>>    reformulating Q11 based on the small group’s discussion around a staggered
>>    approach to disclosure, i.e., first, disclosure of list of domain names,
>>    rather than disclosure of all contact information associated with the
>>    domain names.
>>
>>
>>
>>    1. *Right to be Forgotten*: Legal Committee to review the Google
>>    Right to be Forgotten case
>>    <https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:62017CJ0507&from=EN>
>>    and come prepared to discuss whether this case is relevant to the EPDP
>>    Team’s Phase 2 work; if yes, Legal Committee to formulate draft question to
>>    Bird & Bird.
>>
>>
>>
>> *Legal Memo Summaries:*
>>
>>
>>
>>    1. Legal Committee to review and edit the clean drafts of the Phase 2
>>    legal memo summaries in advance of the next Legal Committee meeting on *Tuesday,
>>    19 November at 14:00 UTC*. Please find links to the memos below:
>>
>>
>>
>>    1. Questions 1/2 (controllership/liability):
>>       https://docs.google.com/document/d/1wqEn6-PvvIOjcK5BxrVFi2HND4na2H-vE4jbKt00oCk/edit
>>       2. Question 3 (automation):
>>
>> *https://docs.google.com/document/d/1SJu0Znem6fOybAKb19nB6cSSgaO6ZRfM3BpViX-wZA4/edit
>> <https://docs.google.com/document/d/1SJu0Znem6fOybAKb19nB6cSSgaO6ZRfM3BpViX-wZA4/edit>*
>>
>>    1. Question 4 (disclosure to LEA outside of the controller’s
>>       jurisdiction):
>>
>> *https://docs.google.com/document/d/1blfcicgJu_NBV9L3dtF9aRU28W5hjaXdVzCeVNwcoXA/edit
>> <https://docs.google.com/document/d/1blfcicgJu_NBV9L3dtF9aRU28W5hjaXdVzCeVNwcoXA/edit>*
>>
>>
>>
>> *Priority 2 Legal Questions*
>>
>>
>>
>>    1. By *Friday, 15 November*, Legal Committee to reread the questions
>>    submitted for Priority 2 items. In reading the questions, Legal Committee
>>    to:
>>       1. Determine if, based on the EPDP Team’s work to date, the
>>       question is still relevant and should be considered by the Legal Committee.
>>       If YES,
>>       2. Update the applicable Priority 2 worksheet to include a
>>       rationale as to why this question is relevant and should be posed to
>>       outside counsel.
>>
>>
>>
>> Please find a link to the Priority 2 Worksheet links
>> <https://community.icann.org/display/EOTSFGRD/b.+Worksheets>. Please
>> note that within each worksheet, Support Staff has (i) indicated who is
>> responsible for adding a rationale to each question and (ii) added cited
>> text where applicable.
>>
>>
>>
>>    1. In advance of the next Legal Committee Meeting on *Tuesday, 19
>>    November*, Legal Committee to review the Priority 2 questions for Accuracy
>>    and WHOIS ARS
>>    <https://docs.google.com/document/d/1pS9Pibanj-Hp6LztZpeERtxdoLsnp4y_-do0vU5VJuw/edit>
>>    and City Field Redaction
>>    <https://docs.google.com/document/d/1rdtRLaNm5DiWR_EPei4Oi64FaDauIXEQhnF2Lm_NxbI/edit>.
>>
>>
>>
>>
>> Thank you.
>>
>>
>>
>> Best regards,
>>
>>
>>
>> Marika, Berry, and Caitlin
>>
>>
>>
>>
>> _______________________________________________
>> Gnso-epdp-legal mailing list
>> Gnso-epdp-legal at icann.org
>> https://mm.icann.org/mailman/listinfo/gnso-epdp-legal
>> _______________________________________________
>> By submitting your personal data, you consent to the processing of your
>> personal data for purposes of subscribing to this mailing list accordance
>> with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and
>> the website Terms of Service (https://www.icann.org/privacy/tos). You
>> can visit the Mailman link above to change your membership status or
>> configuration, including unsubscribing, setting digest-style delivery or
>> disabling delivery altogether (e.g., for a vacation), and so on.
>
> _______________________________________________
> Gnso-epdp-legal mailing list
> Gnso-epdp-legal at icann.org
> https://mm.icann.org/mailman/listinfo/gnso-epdp-legal
> _______________________________________________
> By submitting your personal data, you consent to the processing of your
> personal data for purposes of subscribing to this mailing list accordance
> with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and
> the website Terms of Service (https://www.icann.org/privacy/tos). You can
> visit the Mailman link above to change your membership status or
> configuration, including unsubscribing, setting digest-style delivery or
> disabling delivery altogether (e.g., for a vacation), and so on.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/gnso-epdp-legal/attachments/20191115/b4b3dc6b/attachment.html>