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A Study on CJEU Cases on GDPR and Their Implications for Korea Privacy, EU GDPR

Author Kyu Yub Lee and Jun Hyun Eom Series 20-05 Language Korean Date 2020.11.20

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  This report reviews the preliminary judgments of the CJEU on the interpretation of the EU GDPR and compares them with Korean laws and precedents in order to derive implications related to the validity of passive consent, the basis for the transfer of personal data abroad, and the content and scope of application of the right to be forgotten. The CJEU have ruled that passive consent, such as preselected check boxes, is not a valid agreement. In addition, the ombudsperson mechanism which cannot make any decisions binding on intelligence agencies is not effective judicial redress. That is why the Privacy Shield, which was the basis for the transfer of personal data between the EU and the United States, is invalid. Finally, the deletion from search engines based on the right to be forgotten is restricted to the EU region, not the entire world.
  By comparing those precedents of the CJEU with Korean laws and precedents, the report provides the following implications. First, the passive consent was interpreted as invalid even if it was in accordance with Korean laws. Besides, the precedent is also in the same position, which shows important criterion was whether the data subject could objectively confirm the intention of the data subject. However, since Korean laws are less specific than the EU GDPR, it seemed necessary to supplement them. Second, the transfer of personal data to third countries or international organizations was allowed only when the data subject agreed. Otherwise, the EU GDPR recognized various other reasons besides the consent of the data subject. It is time that the supervisory authorities of Korean law should consider whether to allow other basis for the transfer of personal data or not. Last, there was a ruling that the right to be forgotten has not yet been introduced into Korean law. The right to correct and delete in Korean law is recognized only if the information is incorrect after the exercise of the right to read, and there is a difference from the right to be forgotten. Discussions on whether to introduce the right to be forgotten are needed.


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