Staying Ahead of Privacy Regulations: A Guide for In-House Counsel

Staying Ahead of Privacy Regulations: A Guide for In-House Counsel

Estimated reading time: 6 minutes

Data privacy has become one of the most important and complex areas of law for companies to navigate in the modern era. With the exponential growth of data collection, processing, and storage, businesses must comply with an increasing number of stringent privacy regulations around the world. The stakes are high; failing to comply with privacy laws can lead to significant penalties, lawsuits, and reputational damage. Moreover, the complexity of these laws can vary by jurisdiction, making it even more challenging for companies operating globally. In-house counsel play a critical role in ensuring that their organizations stay compliant with these evolving legal requirements while protecting both company interests and consumer trust. 

Understanding the Regulatory Landscape: Local, National, and Global Laws

One of the biggest challenges for in-house counsel is keeping track of the ever-changing privacy regulatory landscape. Laws such as the General Data Protection Regulation (GDPR), the California Consumer Privacy Act (CCPA), and newer regulations like the California Privacy Rights Act (CPRA) or Virginia’s Consumer Data Protection Act (VCDPA), have established rigorous standards that companies must meet when collecting and processing personal data. Moreover, other countries and states are enacting their own privacy regulations, creating a patchwork of requirements that vary by region.

In-house counsel must maintain a comprehensive understanding of these laws, focusing on their differences and similarities. Establishing a compliance checklist for each relevant jurisdiction can help ensure that the company meets legal requirements, such as data subject rights, transparency obligations, and data retention rules.

Additionally, legal teams should closely monitor legislative developments in privacy law. Engaging with privacy law networks, subscribing to legal updates, like CEB’s DailyNews feature, and collaborating with external counsel when needed can help ensure the organization remains aware of emerging regulations. For companies operating globally, maintaining a dedicated team or point person within the legal department focused on privacy compliance is essential for staying informed of regulatory changes and ensuring ongoing compliance.

Ensuring Compliance with Data Subject Rights

One of the key elements of modern privacy regulations is the protection of data subject rights. Under laws such as the GDPR and CCPA, individuals have the right to access their personal data, request its deletion, and correct inaccuracies. Non-compliance with these rights can lead to hefty fines, consumer complaints, and lawsuits.

In-house counsel must ensure that the company has clear processes in place for responding to data subject access requests (DSARs). This involves establishing a system for receiving and verifying requests, retrieving the necessary data, and delivering it to the individual within the required timeframe (e.g., within 30 days under the GDPR).

Additionally, in-house counsel should work closely with IT to ensure that the company’s data systems are capable of handling DSARs. Automating parts of the process—such as identity verification or data retrieval—can help reduce the administrative burden and minimize errors in fulfilling requests.

It is also important to regularly review and update the company’s privacy policies to ensure they clearly communicate the rights of data subjects and how the company processes personal data. Transparency is a key requirement under most privacy laws, and in-house counsel should ensure that privacy notices are up to date, clear, and easily accessible to consumers.

Managing Cross-Border Data Transfers

Cross-border data transfers present a significant challenge for in-house counsel, particularly for companies operating internationally. The GDPR imposes strict requirements on transferring personal data outside the European Economic Area (EEA) to ensure that the same level of protection applies even when the data is processed in a country with less stringent privacy laws.

To manage cross-border data transfers, in-house counsel should first assess whether the company transfers personal data to countries outside of the EEA or other regions with similar data protection requirements. If so, legal teams must determine whether those countries provide an adequate level of data protection, according to regulatory standards.

When transferring data to countries that do not meet these standards, companies must implement additional safeguards, such as Standard Contractual Clauses (SCCs), Binding Corporate Rules (BCRs), or explicit consent from the data subjects. In-house counsel should review these mechanisms regularly to ensure they remain legally valid, especially in light of ongoing legal challenges like the “Schrems II” case, which invalidated the EU-U.S. Privacy Shield framework.

In-house counsel should also work closely with IT teams to establish data localization strategies when necessary, ensuring that personal data remains within regions with appropriate legal protections or meets legal requirements when transferred outside those regions.

Data Breach Response and Notification

Data breaches are an inevitable risk for any organization handling personal data. When a breach occurs, companies must act swiftly to mitigate damage and comply with legal obligations, including notifying regulators and affected individuals within a specific timeframe.

In-house counsel should work with the company’s IT and risk management teams to develop a comprehensive data breach response plan. This plan should include steps for identifying and containing the breach, assessing the severity of the incident, and notifying affected parties and regulators. 

Under the GDPR, companies must report breaches to the relevant Data Protection Authority within 72 hours if the breach poses a risk to individuals’ rights and freedoms. In the U.S., breach notification laws vary by state, and some jurisdictions may require notification within days or weeks, depending on the severity of the breach.

In-house counsel should ensure that the company’s response plan outlines the specific steps required to meet these legal obligations, including timelines, notification content, and documentation requirements. Conducting regular data breach simulations can also help ensure that the company is prepared to respond quickly and effectively in the event of an actual breach.

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