Category: GDPR

noyb filed complaints against the cookie paywalls of seven major news websites in Austria and Germany

25. August 2021

Privacy Activist Max Schrems’ data protection organization noyb (an acronym for “none of your business”) announced on August 13th, 2021, they filed complaints against the cookie paywalls of seven major German and Austrian news websites. In the statement, they question whether consent can be “voluntarily” given if you have to pay to keep your data.

An increasing amount of websites asks their users to either agree to data being passed on to hundreds of tracking companies (which generates a few cents of revenue for the website) or take out a subscription (for up to € 80 per year). Can consent be considered “freely given” if the alternative is to pay 10, 20 or 100 times the market price of your data to keep it to yourself?

With these paywalls, the user must decide whether to agree to the use of his or her own data for advertising purposes or to enter into a paid subscription with the respective publisher. However, personal data may only be processed if there is a legal basis for doing so. Such a legal basis may arise, for example, from Article 6 (1) (a) of the GDPR, if the data subject has given his or her consent to this processing. Such consent must be “freely given”. According to Rectical 42, sentence 5, “consent is not regarded as freely given if the data subject has no genuine or free choice or is unable to refuse or withdraw consent without detriment.” noyb is of the opinion that the paywall solution lacks the necessary voluntariness for consent and thus also lacks a legal basis according to Art. 6 (1) a) DSGVO.

Art. 7 (4) GDPR demands, “when assessing whether consent is freely given, utmost account shall be taken of whether, inter alia, the performance of a contract, including the provision of a service, is conditional on consent to the processing of personal data that is not necessary for the performance of that contract.”

In contrast, in a decision on November 30th, 2018, the Austrian data protection authority did not see a violation of the GDPR in a paywall system, as the data subject receives a recognizable benefit, and expressed that the decision was thus voluntary after all.

Accordingly, users’ personal data could be considered a “means of payment” with which they pay for a paid subscription instead of a monetary benefit. Consent to data processing would thus be necessary for fulfillment, as it represents the quid pro quo the data subject, in other words, the purchase price. How the responsible data protection authorities will ultimately decide remains to be seen.

These complaints by noyb represent the organization’s second major campaign this month. On August 10, they have already filed 422 formal complaints with 10 European regulators based on inadequate cookie banners.

Luxembourg’s National Commission for Data Protection fines Amazon a record-breaking 746 million Euros for misuse of customer data

11. August 2021

On August 6, 2021, Amazon disclosed the ruling of the Luxembourg data protection authority Commission nationale pour la protection des donées (CNPD) in an SEC filing, which imposed a record-breaking €746 million fine on Amazon Europe Core S.à.r.l. for alleged violations of the EU General Data Protection Regulation (GDPR) on July 16, 2021.

Based on press reports and Amazon’s public statements, the fine appears to relate to Amazon’s use of customer data for targeted advertising purposes.

The penalty is the result of a 2018 complaint by French privacy rights group La Quadrature du Net, a group that aims to represent the interests of thousands of Europeans to ensure their data is used according to data protection law in an attempt to avoid Big Tech companies manipulating their behavior for political or commercial purposes. The complaint also targets Apple, Facebook, Google and LinkedIn and was filed on behalf of more than 10,000 customers and alleges that Amazon manipulates customers for commercial means by choosing what advertising and information they receive.

Amazon stated that they „strongly disagree with the CNPD’s ruling“ and intend to appeal. „The decision relating to how we show customers relevant advertising relies on subjective and untested interpretations of European privacy law, and the proposed fine is entirely out of proportion with even that interpretation.”

The amount of the fine is substantially higher than the proposed fine in a draft decision that was previously reported in the press. The French data protection authority (CNIL) said Luxembourg’s decision, which is “of an unprecedented scale and marks a turning point in the application of the GDPR and the protection of the rights of European nationals.“

The CNIL confirmed the CNPD fined Amazon, and other European member states agreed to the Luxembourg decision. Amazon will have six months to correct the issue.

CNIL fines Monsanto 400,000 € for GDPR violations

29. July 2021

France’s data protection authority, the Commission Nationale de l’Informatique et des Libertés (CNIL), imposed a fine of 400,000 € on the U.S.-based biotechnology corporation Monsanto Company for contravention of Article 14 GDPR regarding the information of data subjects about the collection of their personal data and Article 28 GDPR concerning contractual guarantees which lay down relations with a data processor.

In May 2019, several media outlets revealed that Monsanto was in possession of a file containing personal data of more than 200 political figures or members of civil society (e.g. journalists, environmental activists, scientists or farmers). The investigations carried out by the CNIL disclosed that the information had been collected for lobbying purposes. The individuals named on this “watch list” were Monsanto’s opponents and critics from several European countries, meant to be “educated” or “monitored”. This strategy should have influenced the debate and public opinion on the renewal of the authorization of glyphosate in Europe, a controversial active substance contained in Monsanto’s best-known product for weed control. The reason for the still current scientific controversy is the causation of diseases by glyphosate, most notably cancer.

The file included, for each of the individuals, personal data such as organization, position, business address, business phone number, cell phone number, business email address, and in some cases Twitter accounts. In addition, each person was given a score from 1 to 5 to evaluate their influence, credibility, and support for Monsanto on various issues such as pesticides or genetically modified organisms.

It should be noted that the creation of contact files by stakeholders for lobbying purposes is not illegal per se. While it is not necessary to obtain the consent of the data subjects, the data have to be lawfully collected and the individuals have to be informed of the processing.

In imposing the penalty, the CNIL considered that Monsanto had failed to comply with the provisions of the GDPR by not informing the data subjects about the storage of their data, as required by Article 14 GDPR. In addition, none of the exceptions provided in Article 14 para. 5 GDPR were applicable in this case. The data protection authority stressed that the aforementioned obligation is a key measure under the GDPR insofar as it allows the data subjects to exercise their other rights, in particular the right to object.

Furthermore, Monsanto violated its obligations under Article 28 GDPR. As a controller, the company was required to establish a legal framework for the processing carried out on its behalf by its processor, in particular to provide data security guarantees. However, in the CNIL’s opinion, none of the contracts concluded between the two companies complied with the requirements of Article 28 para. 4 GDPR.

No obligation to disclose vaccination certificates at events in Poland

7. July 2021

According to recent announcements, the Polish Personal Data Protection Office (UODO) has indicated that vaccinated individuals participating in certain events cannot be required to disclose evidence of vaccination against COVID-19.

In Poland, one of the regulations governing the procedures related to the prevention of the spread of coronavirus is the Decree of the Council of Ministers of May 6th, 2021 on the establishment of certain restrictions, orders and prohibitions in connection with the occurrence of an epidemic state. Among other things, it sets limits on the number of people who can attend various events which are defined by Sec. 26 para. 14 point 2, para. 15 points 2, 3. The aforementioned provisions concern events and meetings for up to 25 people that take place outdoors or in the premises/building indicated as the host’s place of residence or stay as well as events and meetings for up to 50 people that take place outdoors or in the premises/separate food court of a salesroom. Pursuant to Sec. 26 para. 16, the stated number of people does not include those vaccinated against COVID-19.

In this context the question has arisen how the information about the vaccination can be obtained. As this detail is considered health data which constitutes a special category of personal data referred to in Art. 9 para. 1 GDPR, its processing is subject to stricter protection and permissible if at least one of the conditions specified in para. 2 is met. This is, according to Art. 9 para. 2 lit. i GDPR, especially the case if the processing is necessary for reasons of public interest in the area of public health, such as protecting against serious cross-border threats to health or ensuring high standards of quality and safety of health care and of medicinal products or medical devices, on the basis of Union or Member State law which provides for suitable and specific measures to safeguard the rights and freedoms of the data subject, in particular professional secrecy.

The provisions of the Decree do not regulate the opportunity of requiring the participants in the mentioned events to provide information on their vaccination against COVID-19. Hence, it is not specified who may verify the evidence of vaccination, under what conditions and in what manner. Moreover, “specific measures to safeguard” as referred to in Art. 9 para. 2 lit. i GDPR, cited above, are not provided as well. Therefore, the regulations of the Decree cannot be seen as a legal basis authorizing entities obliged to comply with this limit of persons to obtain such data. Consequently, the data subjects are not obliged to provide it.

Because of this, collection of vaccination information can only be seen as legitimate if the data subject consents to the data submission, as the requirement of Art. 9 para. 2 lit. a GDPR will be fulfilled. Notably, the conditions for obtaining consent set out in Art. 4 para. 11 and Art. 7 GDPR must be met. Thus, the consent must be voluntary, informed, specific, expressed in the form of an unambiguous manifestation of will and capable of being revoked at any time.

European Commission Adopts UK Adequacy Decisions

5. July 2021

On June 28, 2021, the European Commission adopted two adequacy decisions for the United Kingdom, one under the General Data Protection Regulation (GDPR) and another under the Law Enforcement Directive.

This means that organizations in the EU can continue to transfer personal data to organizations in the UK without restriction and fear of repercussions. Thus, there is no need to rely upon data transfer mechanisms, such as the EU Standard Contractual Clauses, to ensure an adequate level of protection while transferring personal data, which represents a relief as the bridging mechanism of the interim period decided on after Brexit set out to expire by the end of June 2021.

The European Commission found the U.K.’s data protection system has continued to incorporate to the same rules that were applicable when it was an EU member state, as it had “fully incorporated” the principles, rights and obligations of the GDPR and Law Enforcement Directive into its post-Brexit legal system.

The Commission also noted the U.K. system provides strong safeguards in regards to how it handles personal data access by public authorities, particularly for issues of national security.

In regards to criticism of potential changes in the UK’s legal system concerning personal data, Věra Jourová, Vice-President for Values and Transparency stated that: „We have listened very carefully to the concerns expressed by the Parliament, the Members States and the European Data Protection Board, in particular on the possibility of future divergence from our standards in the UK’s privacy framework. We are talking here about a fundamental right of EU citizens that we have a duty to protect. This is why we have significant safeguards and if anything changes on the UK side, we will intervene.“

The Commission highlighted that the collection of data by UK intelligence authorities is legally subject to prior authorization by an independent judicial body and that any access to data needs to be necessary and proportionate to the purpose pursued. Individuals also have the ability to seek redress in the UK Investigatory Powers Tribunal.

EU Commission publishes Draft Adequacy Decision for South Korea

25. June 2021

On 16 June 2021, the European Commission published the draft adequacy decision for South Korea and transmitted it to the European Data Protection Board (EDPB) for consultation. Thus, the Commission launched the formal procedure towards the adoption of the adequacy decision. In 2017, the Commission announced to prioritise discussions on possible adequacy decisions with important trading partners in East and South-East Asia, starting with Japan and South Korea. The adequacy decision for Japan was already adopted in 2019.

In the past, the Commission diligently reviewed South Korea’s law and practices with regards to data protection. In the course of ongoing negotiations with South Korea, the investigative and enforcement powers of the Korean data protection supervisory authority “PIPC” were strengthened, among other things. After the EDPB has given its opinion, the adequacy decision will need to be approved by a committee composed of representatives of the EU Member States.

The decision of an adequate level of protection pursuant to Art. 45 of the General Data Protection Regulation (GDPR) by the Commission is one of the possibilities to transfer personal data from the EU to a third-country in a GDPR-compliant manner. The adequacy decision will serve as an important addition to the free trade agreement and a strengthening of cooperation between the EU and South Korea. Věra Jourová, the Commission’s Vice-President for Values and Transparency, expressed after launching the formal procedure:

“This agreement with the Republic of Korea will improve the protection of personal data for our citizens and support business in dynamic trade relations. It is also a sign of an increasing convergence of data protection legislation around the world. In the digitalised economy, free and safe data flows are not a luxury, but a necessity.”

Especially in light of the Schrems II decision of the Court of Justice of the European Union, the adequacy decision for South Korea will be an invaluable asset for European and South Korean companies conducting business with each other.

CJEU ruling on One-Stop-Shop mechanism

On June 15th, 2021, the Court of Justice of the European Union (CJEU) ruled that “under certain conditions, a national supervisory authority may exercise its power to bring any alleged infringement of the GDPR before a court of a member state, even though that authority is not the lead supervisory authority”. It grants each supervisory authority the power to bring matters within its supervisory area before the courts. If a non-lead supervisory authority wishes to bring cross-border cases to court, it can do so under the so-called emergency procedure under Article 66 of the GDPR.

The General Data Protection Regulation (GDPR) provides that the data protection authority of the country in which a company has its principal place of business in the EU has primary jurisdiction for cross-border proceedings against such companies (the so-called one-stop-shop principle). Facebook and a number of other international companies have their EU headquarters in Ireland. The Irish data protection authority has been criticised several times for dragging out numerous important cases against tech companies. The CJEU’s ruling is likely to lead to more enforcement proceedings by local data protection authorities.

In 2015 – before the GDPR came into force – the Belgian data protection authority filed a lawsuit in Belgian courts against Facebook’s collection of personal data via hidden tracking tools. These tracking tools even tracked users without Facebook accounts. After the GDPR came into force, Facebook argued that lawsuits against data protection violations could only be filed in Ireland. A court of appeal in Brussels then referred the question to the ECJ as to whether proceedings against Facebook were admissible in Belgium. This has now been confirmed by the ECJ. The Belgian court is now free to make a final decision (please see our blog post).

The CJEU has now ruled that, in principle, the lead data protection authority is responsible for prosecuting alleged GDPR violations if they involve cross-border data processing. The data processing must therefore take place in more than one Member State or have an impact on individuals in several member states. However, it is also specified that the “one-stop-shop” principle of the GDPR obliges the lead authority to cooperate closely with the respective local supervisory authority concerned. In addition, local data protection authorities may also have jurisdiction pursuant to Art. 56 (2) and Art. 66 GDPR. According to the CJEU, if the respective requirements of these provisions are met, a local supervisory authority may also initiate legal proceedings. The CJEU has clarified that actions by non-lead data protection authorities can still be upheld if they are based on the Data Protection Directive, the predecessor of the GDPR.

The EU consumer association BEUC called the ruling a positive development. BEUC Director General Monique Goyens said:

Most Big Tech companies are based in Ireland, and it should not be up to that country’s authority alone to protect 500 million consumers in the EU.

While Facebook’s associate general counsel Jack Gilbert said:

We are pleased that the CJEU has upheld the value and principles of the one-stop-shop mechanism, and highlighted its importance in ensuring the efficient and consistent application of GDPR across the EU.

EDPB adopts final Recommendation 01/2020 on Supplementary Measures for Data Transfers to Third Countries

22. June 2021

On June 21st, 2021 during its 50th plenary session, the European Data Protection Board (EDPB) adopted a final version of its recommendations on the supplementary measures for data transfers.

In its recent judgment C-311/18 (Schrems II) the Court of Justice of the European Union (CJEU) has decided that, while the Standard Contractual Clauses (SCCs) are still a valid data transfer mechanism, controllers or processors, acting as exporters, are responsible for verifying, on a case-by-case basis and where appropriate, in collaboration with the importer in the third country, if the law or practice of the third country impinges on the effectiveness of the appropriate safeguards contained in the Article 46 GDPR transfer tools. In the cases where the effectiveness of appropriate safeguards is reduced due to the legal situation in the third country, exporters may need to implement additional measures that fill the gaps.

To help exporters with the complex task of assessing third countries and identifying appropriate supplementary measures where needed, the EDPB has adopted this recommendation. They highlight steps to follow, potential information sources as well as non-exhaustive examples of supplementary measures that are meant to help exporters make the right decisions for data transfers to third countries.

The recommendations advise exporters to follow the following steps in order to have a good overview of data transfers and potential supplementary measures necessary:

1. Know the data transfers that take place in your organization – being aware of where data flows is essential to identify potentially necessary supplementary measures;

2. Verify the transfer tool that each transfer relies on and its validity as well as application to the transfer;

3. Assess if a law or a practice in the third country impinges on the effectiveness of the transfer tool;

4. Identify and adopt supplementary measures that are necessary to bring the level of protection of the data transferred up to the EU standard;

5. Take formal procedural steps that may be required by the adoption of your supplementary measure, depending on the transfer tool you are relying on;

6. Re-evaluate the level of protection of the data you transfer at appropriate intervals and monitor any potential changes that may affect the transfer.

The EDPB Chair, Andrea Jelinek, stated that “the effects of Schrems II cannot be underestimated”, and that the “EDPB will continue considering the effects of the Schrems II ruling and the comments received from stakeholders in its future guidance”.

The recommendations clearly highlight the importance of exporters to understand and keep an eye on their data transfers to third countries. In Germany, the Supervisory Authorities have already started (in German) to send out questionnaires to controllers regarding their data transfers to third countries and the tools used to safeguard the transfers. Controllers in the EU should be very aware of the subject of data transfers in their companies, and prepare accordingly.

Belgian DPA approves first EU Data Protection Code of Conduct for Cloud Service Providers

21. June 2021

On May 20th, 2021, the Belgian Data Protection Authority (Belgian DPA) announced that it had approved the EU Data Protection Code of Conduct for Cloud Service Providers (EU Cloud CoC). The EU Cloud CoC is the first transnational EU code of conduct since the entry into force of the EU General Data Protection Regulation in May 2018.

The EU Cloud CoC represents a sufficient guarantee pursuant to Article 28 (1) and 28 (5) of the GDPR, as well as Recital 81 of the GDPR, which makes the adherence to the code by cloud service providers a valid way to secure potential data transfers.

In particular, the EU Cloud CoC aims to establish good data protection practices for cloud service providers, giving data subjects more security in terms of the handling of their personal data by cloud service providers. In addition, the Belgian DPA accredited SCOPE Europe as the monitoring body for the code of conduct, which will ensure that code members comply with the requirements set out by the code.

It further offers cloud service providers with practical guidance and a set of specific binding requirements (such as requirements regarding the use of sub-processors, audits, compliance with data subject rights requests, transparency, etc.), as well as objectives to help cloud service providers demonstrate compliance with Article 28 of the GDPR.

In the press release, the Chairman of the Belgian DPA stated that „the approval of the EU Cloud CoC was achieved through narrow collaboration within the European Data Protection Board and is an important step towards a harmonised interpretation and application of the GDPR in a crucial sector for the digital economy“.

Amazon facing potential record GDPR fine

18. June 2021

Luxembourg’s National Commission for Data Protection, the CNPD, has proposed a $ 425 million (€ 348.7 million) fine against Amazon.com Inc. for alleged GDPR violations, the Wall Street Journal reports. It would be the highest penalty to date under EU data protection law, exceeding the current record penalty of € 50 million against Google LLC.

It is not yet clear to the public what exactly the allegations are since the statements are based on a confidential source. Amazon also declined to comment on the case. The charges are apparently related to Amazon’s data collection and usage practices, but do not involve the Amazon Web Services cloud computing business.

The CNPD is Amazon’s competent data protection authority as the international retail company has its regional headquarters in the Grand Duchy of Luxembourg. According to the Article 64 GDPR procedure, the CNPD submitted its draft decision to data protection authorities of the other EU member states, which will have to approve the sanction before it can be officially imposed. Based on comparable cases in the past, the process could take months and lead to substantive changes, including an increased or reduced fine.

Though the proposed amount would set a record, it is far below the maximum of 4 % of the total worldwide annual turnover of the preceding financial year allowed by Article 83 (5) GDPR. It amounts to only about 0.1 % of Amazon’s annual revenue. As some critics say, this illustrates a pattern of data protection authorities favoring big-tech companies and often reducing large initial proposals after a long deliberation period. Given the companies’ massive incomes, such penalties are easy to recover from and ultimately, they run counter to the preventive purpose of the punishment.

As a result, these companies could soon fall under the terms of the Digital Services Act and the Digital Markets Act, which were proposed by the European Commission at the end of 2020 to upgrade rules governing digital services in the EU. This new set of regulations, which specifically targets tech companies, increases potential fines to 10 % of the global turnover.

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