Safe Harbour 2.0 Contains “Suspension Clause”

The European Union has the right to suspend any new data sharing agreement with the United States and Europe if privacy concerns are raised once again.

This is the stark warning from the EU Justice Commissioner, and comes ahead of the signing of any new data sharing deal with America.

Suspension Clause

The European Union Court of Justice (CJEU) ruled in early October that the Safe Harbour data-sharing agreement between the United States and Europe, that had been in existence for 15 years, was invalid.

The EU and the US have been in negotiations for the past two years over a new agreement to replace Safe Harbour, that would better protect data being transferred to the US, in light of the NSA spying revelations by Edward Snowden.

In May it was revealed those negotiations were very close to completion. Those talks have fresh urgency, and it is thought a new deal could be in place as soon as January.

But the EU has warned that if it fears the United States is not safeguarding privacy enough, it can suspend the new agreement. This emerged during a speech by the EU Justice Commissioner Vera Jourova at 6th Annual European Data Protection and Privacy Conference in Brussels.

“We have been negotiating a renewed, safer arrangement for transatlantic data transfers with our American partners since 2014,” she said. “A renewed arrangement that will mean robust safeguards for citizens and legal certainty for businesses. I got the impression in Washington that the US side shares this aim and I hope they share our sense of urgency after the judgement.”

“In the new Safe Harbour there will be a suspension clause, saying that under concrete conditions we are going to suspend (it),” Commissioner Vera Jourova was then quoted by Reuters as saying.

Agreement Fallout

The suspension of the Safe Harbour agreement in October has certainly caused a great deal of anxiety.

It alarmed thousands of businesses including Google and Facebook as they transfer data between the US and Europe. Even more alarming for them is these firms potentially face legal action beginning at the end of January 2016 over the matter.

The British data protection watchdog (the ICO) had sought reassure British firms in the interim, and the EC has also published its own guidelines for firms, but it has effectively warned that the current Safe Harbour deal is dead and buried, and should not be used.

And European data regulators have also confirmed that those transfers can no longer legally be carried out under the current Safe Harbour rules.

In November the Commission effectively told the United States the ball is in their court regarding the future progress of the Safe Harbour data agreement.

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