Category: GDPR

Germany: Telecommunications provider receives a 9.5 Million Euro GDPR fine

16. December 2019

The German Federal Commissioner for Data Protection and Freedom of Information (BfDI) has imposed a fine of 9.55 Million Euro on the major telecommunication services provider 1&1 Telecom GmbH (1&1). This is the second multimillion Euro fine that the Data Protection Authorities in Germany have imposed. The first fine of this magnitude (14.5 Million Euro) was imposed last month on a real estate company.

According to the BfDI, the reason for the fine for 1&1 was an inadequate authentication procedure within the company’s customer service department, because any caller to 1&1’s customer service could obtain extensive information on personal customer data, only by providing a customer’s name and date of birth. The particular case that was brought to the Data Protection Authority’s attention was based on a caller’s request of the new mobile phone number of an ex-partner.

The BfDI found that this authentication procedure stands in violation of Art. 32 GDPR, which sets out a company’s obligation to take appropriate technical and organisational measures to systematically protect the processing of personal data.

After the BfDI had pointed 1&1 to the their deficient procedure, the company cooperated with the authorities. In a first step, the company changed their two-factor authentication procedure to a three step authentication procedure in their customer service department. Furthermore, they are working on a new enhanced authentication system in which each customer will receive a personal service PIN.

In his statement, the BfDI explained that the fine was necessary because the violation posed a risk to the personal data of all customers of 1&1. But because of the company’s cooperation with the authorities, the BfDI set the fine at the lower end of the scale.

1&1 has deemed the fine “absolutely disproportionate” and has announced to file a suit against the penalty notice by the BfDI.

Dutch DPA issued a statement regarding cookie consent

12. December 2019

The Dutch Data Protection Authority (Autoriteit Persoonsgegevens) has recently issued a statement regarding compliance with the rules on cookie consent. According to the statement the DPA has reviewed 175 websites and e-commerce platforms to see if they meet the requirements for the use of cookies. They found that almost half of the websites and nearly all e-commerce platforms do not meet the requirements for cookie consent.

The data protection authority has contacted the companies concerned and requested them to adjust their cookie usage.

In its statement, the Data Protection Authority also refers to the “Planet49case” of the Court of Justice of the European Union (“CJEU”) and clarifies that boxes that have already been clicked do not comply with the obligation to obtain the user’s consent. In addition, it is not equivalent to obtaining consent to the use of cookies if the user merely scrolls down the website. Cookies, which enable websites to track their users, always require explicit consent.

Lastly, the DPA recalls that cookie walls that prevent users, who have not consented to the use of cookies from accessing the website are not permitted.

Category: EU · GDPR · The Netherlands
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Austrian data protection authority imposes 18 million euro fine

22. November 2019

The Austrian Data Protection Authority (DPA) has imposed a fine of 18 million euros on Österreichische Post AG (Austrian Postal Service) for violations of the GDPR.

The company had among other things collected data on the “political affinity” from 2.2 million customers, and thus violated the GDPR. Parties should be able to send purposeful election advertising to the Austrian inhabitants with this information.

In addition, they also collected data on the frequency of parcel deliveries and the relocation probability of customers, so that these can be used for direct marketing.

The penalty is not yet final. Österreichische Post AG, half of which belongs to the Austrian state, can appeal the decision before the Federal Administrative Court. The company has already announced its intention to take legal action.

CNIL publishes report on facial recognition

21. November 2019

The French Data Protection Authority, Commission Nationale de l’Informatique et des Libertés (CNIL), has released guidelines concerning the experimental use of facial recognition software by the french public authorities.

Especially concerned with the risks of using such a technology in the public sector, the CNIL made it clear that the use of facial recognition has vast political as well as societal influences and risks. In its report, the CNIL explicitly stated the software can yield very biased results, since the algorithms are not 100% reliable, and the rate of false-positives can vary depending on the gender and on the ethnicity of the individuals that are recorded.

To minimize the chances of an unlawful use of the technology, the CNIL came forth with three main requirements in its report. It recommended to the public authorities, that are using facial recognition in an experimental phase, to comply with them in order to keep the chances of risks to a minimum.

The three requirements put forth in the report are as follows:

  • Facial recognition should only be put to experimental use if there is an established need to implement an authentication mechanism with a high level of reliability. Further, there should be no less intrusive methods applicable to the situation.
  • The controller must under all circumstances respect the rights of the individuals beig recorded. That extends to the necessity of consent for each device used, data subjects’ control over their own data, information obligation, and transparency of the use and purpose, etc.
  • The experimental use must follow a precise timeline and be at the base of a rigorous methodology in order to minimize the risks.

The CNIL also states that it is important to evaluate each use of the technology on a case by case basis, as the risks depending on the way the software is used can vary between controllers.

While the CNIL wishes to give a red lining to the use of facial recognition in the future, it has also made clear that it will fulfill its role by showing support concerning issues that may arise by giving counsel in regards to legal and methodological use of facial recognition in an experimental stage.

Category: EU · French DPA · GDPR · General
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Health data transfered to Google, Amazon and Facebook

18. November 2019

Websites, spezialized on health topics transfer information of website users to Google, Amazon and Facebook, as the Financial Times reports.

The transferred information are obtained through cookies and include medical symtoms and clinical pictures of the users.

Referring to the report of the Financial Times does the transfer take place without the express consent of the data subject, contrary to the Data Protection Law in the UK. Besides the legal obligations in the UK, the procedure of the website operators, using the cookie, contradicts also the legal requirements of the GDPR.

According to the requirements of the GDPR the processing of health data falls under Art. 9 GDPR and is a prohibition subject to permission, meaning, that the processing of health data is forbidden unless the data subject has given its explicit consent.

The report is also interesting considering the Cookie judgement of the CJEU (we reported). Based on the judgment, consent must be obtained for the use of each cookie.

Accordingly, the procedure of the website operators will (hopefully) change in order to comply with the new case law.

 

Berlin commissioner for data protection imposes fine on real estate company

6. November 2019

On October 30th, 2019, the Berlin Commissioner for Data Protection and Freedom of Information issued a fine of around 14.5 million euros against the real estate company Deutsche Wohnen SE for violations of the General Data Protection Regulation (GDPR).

During on-site inspections in June 2017 and March 2019, the supervisory authority determined that the company used an archive system for the storage of personal data of tenants that did not provide for the possibility of removing data that was no longer required. Personal data of tenants were stored without checking whether storage was permissible or even necessary. In individual cases, private data of the tenants concerned could therefore be viewed, even though some of them were years old and no longer served the purpose of their original survey. This involved data on the personal and financial circumstances of tenants, such as salary statements, self-disclosure forms, extracts from employment and training contracts, tax, social security and health insurance data and bank statements.

After the commissioner had made the urgent recommendation to change the archive system in the first test date of 2017, the company was unable to demonstrate either a cleansing of its database nor legal reasons for the continued storage in March 2019, more than one and a half years after the first test date and nine months after the GDPR came into force. Although the enterprise had made preparations for the removal of the found grievances, nevertheless these measures did not lead to a legal state with the storage of personal data. Therefore the imposition of a fine was compelling because of a violation of article 25 Abs. 1 GDPR as well as article 5 GDPR for the period between May 2018 and March 2019.

The starting point for the calculation of fines is, among other things, the previous year’s worldwide sales of the affected companies. According to its annual report for 2018, the annual turnover of Deutsche Wohnen SE exceeded one billion euros. For this reason, the legally prescribed framework for the assessment of fines for the established data protection violation amounted to approximately 28 million euros.

For the concrete determination of the amount of the fine, the commissioner used the legal criteria, taking into account all burdening and relieving aspects. The fact that Deutsche Wohnen SE had deliberately set up the archive structure in question and that the data concerned had been processed in an inadmissible manner over a long period of time had a particularly negative effect. However, the fact that the company had taken initial measures to remedy the illegal situation and had cooperated well with the supervisory authority in formal terms was taken into account as a mitigating factor. Also with regard to the fact that the company was not able to prove any abusive access to the data stored, a fine in the middle range of the prescribed fine framework was appropriate.

In addition to sanctioning this violation, the commissioner imposed further fines of between 6,000 and 17,000 euros on the company for the inadmissible storage of personal data of tenants in 15 specific individual cases.

The decision on the fine has not yet become final. Deutsche Wohnen SE can lodge an appeal against this decision.

Data Incident at H&M in Germany

28. October 2019

According to a report of the ‘Frankfurter Allgemeine Zeitung‘ (FAZ), personal data of H&M employees working in the customer center of H&M in Nuremberg, were leaked to other H&M employees who should not have access to this kind of data.

The concerned personal data result of personnel interviews between employees and mangers. The managers stored the personal information, inter alia health data and information on the private life of employees, in files which should have been only accessible for managers, but according to the report, also other H&M employees besides the managers could access the files and thus the confidential employee data.

At the customer center in Nuremberg work several hundreds employees. These were informed by the board of H&M on Wednesday last week, October 23rd 2019, about the data incident. On the following day the board announced, that all stored in the files, was deleted and that measures were taken to ensure data security. Additionally, the data protection officer of H&M in Nuremberg as well as the competent data protection authority were notified about the data incident.

Category: Data breach · GDPR
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German data protection authorities develop fining concept under GDPR

24. October 2019

In a press release, the German Conference of Data Protection Authorities (Datenschutzkonferenz, “DSK”) announced that it is currently developing a concept for the setting of fines in the event of breaches of the GDPR by companies. The goal is to guarantee a systematic, transparent and comprehensible fine calculation.

The DSK clarifies that this concept has not yet been adopted, but is still in draft stage and will be further worked on. At present it is practiced accompanying with current fine proceedings in order to test it for its practical suitability and aiming accuracy. However, the concrete decisions are nevertheless based on Art. 83 GDPR.

Art. 70 Para. 1 lit. k of the GDPR demands a harmonization of the fine setting within Europe. Therefore guidelines shall be elaborated. For this reason, the DSK draft will be brought into line with the concepts of other EU member states.

Also, at European level a European concept is currently being negotiated. This concept should then be laid down in a guideline, at least in principle. The DSK has also contributed its considerations on the assessment.

The fine concept will be discussed further on 6th and 7th November. After prior examination, a decision will be taken on whether the concept on the setting of fines shall be published.

Category: Data breach · EU · GDPR
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Belgian DPA announces GDPR fine

7. October 2019

The Belgian data protection authority (Gegevensbeschermingsautoriteit) has recently imposed a fine of €10,000 for violating the General Data Protection Regulation (GDPR). The case concerns a Belgian shop that provided the data subject with only one opportunity to get a customer card, namely the  electronic identity card (eID). The eID is a national identification card, which contains several information about the cardholder, so the authority considers that the use of this information without the valid consent of the customer is disproportionate to the service offered.

The Authority had learnt of the case following a complaint from a customer. He was denied a customer card because he did not want to provide his electronic identity card. Instead, he had offered the shop to send his data in writing.

According to the Belgian data protection authority, this action violates the GDPR in several respects. On the one hand, the principle of data minimisation is not respected. This requires that the duration and the quantity of the processed data are limited by the controller to the extent absolutely necessary for the pursued purpose.

In order to create the customer card, the controller has access to all the data stored on the eID, including name, address, a photograph and the barcode associated with the national registration number. The Authority therefore believes that the use of all eID data is disproportionate to the creation of a customer card.

The DPA also considers that there is no valid consent as a legal basis. According to the GDPR, the consent must be freely given, specific and informed. However, there is no voluntary consent in this case, since no other alternative is offered to the customer. If a customer refuses to use his electronic ID card, he will not receive a customer card and will therefore not be able to benefit from the shops’ discounts and advantages.

In view of these violations, the authority has imposed a fine of €10,000.

Category: Belgian DPA · Belgium · GDPR · General
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CJEU rules pre-checked Cookie consent invalid

2. October 2019

The Court of Justice of the European Union (CJEU) ruled on Tuesday, October 1rst, that storing Cookies on internet users’ devices requires active consent. This decision concerns the implementation of widely spread pre-checked boxes, which has been decided to be insufficient to fulfill the requirements of a lawful consent under the General Data Protection Regulation (GDPR).

The case to be decided concerned a lottery for advertizing purposes initiated by Planet49 GmbH. During the participation process internet users were confronted with two information texts and corresponding checkboxes. Within the first information text the users were asked to agree to be contacted by other companies for promotional offers, by ticking the respective checkbox. The second information text required the user to consent to the installation of Cookies on their devices, while the respective checkbox had already been pre-checked. Therefore users would have needed to uncheck the checkbox if they did not agree to give their consent accordingly (Opt-out).

The Federal Court of Justice in Germany raised and referred their questions to the CJEU regarding whether such a process of obtaining consent could be lawful under the relevant EU jurisprudence, in particular whether valid consent could have been obtained for the storage of information and Cookies on users devices, in case of such mechanisms.

Answering the questions, the CJEU decided, referring to the relevant provisions of Directive 95/46 and the GDPR that require an active behaviour of the user, that pre-ticked boxes cannot constitute a valid consent. Furthermore, in a statement following the decision, the CJEU clarified that consent must be specific, and that users should be informed about the storage period of the Cookies, as well as about third parties accessing users’ information. The Court also said that the “decision is unaffected by whether or not the information stored or accessed on the user’s equipment is personal data.”

In consequence of the decision, it is very likely that at least half of all websites that fall into the scope of the GDPR will need to consider adjustments of their Cookie Banners and, if applicable, procedures for obtaining consent with regard to performance-related and marketing and advertising Cookies in order to comply with the CJEU’s view on how to handle Cookie usage under the current data protection law.

Cookies, in general, are small files which are sent to and stored in the browser of a terminal device as part of the website user’s visit on a website. In case of performance-related and marketing and advertising Cookies, the website provider can then access the information that such Cookies collected about the user when visiting the website on a further occasion, in order to, e.g., facilitate navigation on the internet or transactions, or to collect information about user behaviour.

Following the new CJEU decision, there are multiple possibilities to ensure a GDPR compliant way to receive users’ active consent. In any case it is absolutely necessary to give the user the possibility of actively checking the boxes themselves. This means that pre-ticked boxes are no longer a possibility.

In regard to the obligation of the website controller to provide the user with particular information about the storage period and third party access, a possible way would be to include a passage about Cookie information within the website’s Privacy Policy. Another would be to include all the necessary information under a seperate tab on the website containing a Cookie Policy. Furthermore, this information needs to be easily accessible by the user prior to giving consent, either by including the information directly within the Cookie Banner or by providing a link therein.

As there are various different options depending on the types of the used Cookies, and due to the clarification made by the CJEU, it is recommended to review the Cookie activities on websites and the corresponding procedures of informing about those activities and obtaining consent via the Cookie Banner.

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