Belgian DPA declares technical standard used for cookie banner for consent requests illegal
In a long-awaited decision on the Transparency and Consent Framework (TCF), the Belgian data protection authority APD concludes that this technical standard, which advertisers use to collect consent for targeted advertising on the Internet, does not comply with the principles of legality and fairness. Accordingly, it violates the GDPR.
The ADP’s decision is aligned with other European data protection authorities and has consequences for cookie banners and behavioral online advertising in the EU. The advertising association IAB Europe, which develops and operates the TCF system, must now delete the personal data collected in this way and pay a fine of 250,000 euros. In addition, conditions have been determined for the advertising industry under which the TCF may continue to be used at all.
Almost all companies, including advertising companies such as Google or Amazon, use the mechanism to pass on users’ presumed consent to the processing of their personal data for personalized advertising purposes. This decision will have a major impact on the protection of users’ personal data. This is also confirmed by Hielke Hijmans from APD.
The basic structure of the targeted advertising system is that each visit to a participating website triggers an auction among the providers of advertisements. Based on the desired prices and the user’s data profile, among other things, a decision is made in milliseconds as to which advertisements she will see. For this real-time bidding (RTB) to work, the advertising companies collect data to compile target groups for ads.
If users accept cookies or do not object that the use of their data is in the legitimate interest of the provider, the TCF generates a so-called TC string, which contains information about consent decisions. This identifier forms the basis for the creation of individual profiles and for the auctions in which advertising spaces and, with them, the attention of the desired target group are auctioned off, and is forwarded to partners in the OpenRTB system.
According to the authority, the TC strings already constitute personal data because they enable users to be identified with the IP address and the cookies set by the TCF. In addition, IAB Europe is said to be jointly legally responsible for any data processing via the framework, although IAB Europe has not positioned itself as a data processor, only as a provider of a standard.
The TCF envisions advertising providers invoking a “legitimate interest” in data collection in cookie banners that pop up all the time, rather than asking for consent. This would have to be prohibited, for example, for it to be lawful. The principles of privacy by design and by default are also violated, since consent is literally tricked by design tricks, the data flows are not manageable, and revocation of consent is hardly possible.
