French Council of State Partially Annuls CNIL Cookie Guidelines on Use of Cookie Walls
On June 19, 2020, the French Conseil d’État (“Council of State”) issued a decision partially annulling the Guidelines of the French Data Protection Authority (the “CNIL”) on cookies and other tracking tools (“Guidelines”). The Council of State ruled that the CNIL’s Guidelines could not prohibit the use of ‘cookie walls’, a practice which consists of blocking user access to a website where the user refuses to consent to cookies and other tracking tools. Nevertheless, the Council of State confirms the Guidelines on other key points, such as the requirement to facilitate the right to withdraw consent to cookies, the retention period for cookies and the information requirement for cookies not subject to a consent requirement.
French Council of State Upholds €50m CNIL Fine against Google
On June 19, 2020, the French Conseil d’État (“Council of State”) issued a decision upholding the €50 Million fine imposed against Google LLC by the French Supervisory Authority (the “CNIL”). On January 21, 2019, the French CNIL had issued a fine against Google’s U.S. headquarters for failure to comply with the EU General Data Protection Regulation’s (“GDPR”) fundamental principles of transparency and legitimacy. Please refer to the relevant Sidley Data Matters’ blog post on the CNIL decision here. The CNIL found that Google had insufficiently informed Android users about their data processing activities, given the complexity of Google’s privacy policy and terms & conditions, and that the consent obtained from them through the use of pre-ticked boxes was insufficient to serve as a legal basis for processing used for targeted advertising. This was the first and highest regulatory fine the CNIL had issued on the basis of the GDPR.
German DSK Issues GDPR Fining Methodology Guidelines
Recently, the Association of German Data Protection Authorities (“Datenschutzkonferenz” or “DSK”) issued guidelines setting a GDPR fining methodology (“Fining Methodology”). GDPR enforcement across the EU has picked up over the past year. This Fining Methodology has been issued at the time of a significant increase in GDPR enforcement action across the EU. The European Data Protection Board (“EDPB”) reported a total of 281,088 national enforcement actions being initiated as of May 22, 2019 (approximately one year after the GDPR’s entry into application). Since then, data protection authorities across the EU have been initiating enforcement and fines on a daily basis. In particular, in the UK, the Information Commissioner’s Office (“ICO”) has issued two notices of intention to fine of €114m and €215m for failure to implement appropriate data security measures.
European Data Protection Board Adopts Data Protection by Design and by Default Guidelines
On 13 November 2019, the European Data Protection Board (“EDPB”) adopted guidelines on the GDPR’s data protection by design and by default principle (“Guidelines”). The Guidelines provide further guidance into the technical and organizational measures and safeguards that data controllers must take into account when designing their processing activities. The EDPB encourages early consideration of data protection by design and by default principles (“DPbDD”) and considers DPbDD to be at the forefront of GDPR compliance. Data controllers, processors and technology providers should consider re-assessing their processing operations and products against the standards put forward in the Guidelines.
Dutch Supervisory Authority Opines on Use of Cookie Walls
Recently, the Dutch Supervisory Authority (the “Autoriteit Persoonsgegevens” or “Dutch SA”) has taken the position that the use of so-called “cookie walls,” whereby website access is made conditional upon the provision of consent to tracking cookies, is not compliant with the EU General Data Protection Regulation (“GDPR”).
French CNIL Fines Google €50m for Violation of GDPR’s Transparency and Consent Requirements
On January 21, 2019, the French Supervisory Authority (the “Commission Nationale de l’Informatique et des Libertés” or “CNIL”) issued Google’s U.S. headquarters (“Google”) with a fine of €50m for failure to comply with the EU General Data Protection Regulation’s (“GDPR”) fundamental principles of transparency and legitimacy. The CNIL found that the general structure of Google’s privacy policy and terms & conditions was too complex for the average user and that Google, by using pre-ticked boxes as a consent mechanism, failed to establish a legal basis for data processing to deliver targeted advertising. This is the first regulatory fine the CNIL issued on the basis of the GDPR’s penalty authorities, and it marks a strong enforcement signal to organizations subject to the CNIL’s jurisdiction moving forward. (more…)
EDPB Issues Long-Awaited Guidance on Territorial Scope of the GDPR
On November 23, 2018, the European Data Protection Board (“EDPB”) published draft guidelines seeking to clarify the territorial scope of the GDPR (“Guidelines”). The Guidelines have been eagerly awaited, particularly by controllers and processors outside of the EU looking for confirmation as to whether or not the EU data protection rules apply to them. The Guidelines largely reaffirm prior interpretations of the GDPR’s territorial application under Article (3)(1), and offer essential guidance with respect to the GDPR’s – heavily debated – extraterritorial application under Article (3)(2). The GDPR applies to companies established in the EU as well as companies outside of the EU that are “targeting” individuals in the EU (by offering them products or services) or monitoring their behavior (as far as that behavior takes place in the EU).
The proposed Guidelines are open for public consultation until January 18, 2019. It remains to be seen whether and how any outstanding issues will have been addressed upon conclusion of the consultation. (more…)
EU Parliament Adopts Blockchain Resolution
On October 3, 2018, the European Parliament passed its long awaited resolution on distributed ledger technologies and blockchains (the “Blockchain Resolution”). The Blockchain Resolution was adopted to protect and empower EU citizens and businesses with respect to the specific issues that arise in relation to the blockchain or “distributed ledger” technology, one of which being the tension with data protection rights and the GDPR in general. (more…)
New Belgian Data Protection Act Takes Effect
On September 5, 2018, the new Belgian Data Protection Act implementing the GDPR (the Belgian Act) was published and entered into force. Despite the GDPR being an EU regulation that directly applies to all EU Member States, several provisions of the GDPR explicitly allow, and even require, Member States to enact legislation which implements the law. Member States were expected to have this legislation in place by May 25, 2018, but the majority of Member States (including Belgium) did not meet the deadline. Since December 2017, however, Belgium has had in place a law implementing many of the more procedural provisions of the GDPR, namely the Act on the Establishment of the Supervisory Authority (the SA Act). The SA Act lays down the structure, powers and competence of the new Belgian Supervisory Authority, and also includes rules of procedure applicable to administrative proceedings before the Authority. (more…)