Italian DPA launches investigation on cookie- and paywalls

27. October 2022

On October 21st, 2022 the Italian Data Protection Authority launched an investigation on the use of cookie walls by several online newspapers. Although the GDPR allows the implementation of cookiewalls and paywalls (not revealing the content of a website unless the cookies have been accepted or a certain amount of money has been paid), the Italian watchdogs will take a closer look if these have been correctly implemented correctly and do not violated the European regulation.

Further information is yet to be released by the authorities.

American company ordered to pay 75.000 Euros to wrongfully terminated employee

12. October 2022

A few days ago a Dutch court ordered a Florida – based company to pay a compensation of 75.000 Euros to an employee. The employee had been fired because he had refused to keep his work computer’s camera on the whole day, as required by the company, being concerned with the fact that this was an invasion of his privacy.

After he was fired he took his former employer to court, suing for wrongful termination; the judges recognized the issue and stated that the American company’s regulation was a violation of the employee’s privacy and were in violation of data protection laws. The worker had already stated his complaint with his employer, also stating that they already could see his shared screen while he was working, and that it was not necessary for him to keep the camera on.

Rather than a matter of personal data protection, this was a matter of the employee’s right to privacy, as stated in Article 8 of the European Convention of Human Rights: the court argued that the company’s request was disproportionate and intrusive of the worker’s privacy.

According to Dutch law, an appeal is possible for the company within three months of the ruling. In the aftermath of the ruling, the company shut down its offices in Rijswijk, Netherlands, where the plaintiff worked.

TikTok faces huge fine from Britain’s ICO

Lately, the Chinese social media success has been the subject of an investigation by the British data protection watchdog, the Information Commissioner’s Office (ICO): the investigation has so far concluded that the social media network has clearly breached the United Kingdom’s data protection laws, in particular the regulations concerning children’s personal data in the time. The Authority issued therefore a notice of intent, which is a potential precursor to a fine amounting up to a staggering 27 million pounds.

In particular, the Authority found out that the platform could have processed personal data of children under the age of 13 failing to gather the parents’ consent for the processing of these data. Under these data there are allegedly also special category data, which have a special protection under Art. 9 GDPR.

Furthermore, in the ICO’s opinion the principle of transparency was not respected by the Chinese hit platform by not providing complete or transparent information on the data processing or their gathering.

The ICO’s investigation is still ongoing as the Commissioner’s Office is still deciding whether to impose the fine or whether there has been a breach of data protection law.

The protection of teenagers and children is the top priority of the ICO according to current Information Commissioner John Edwards. Under his guidance, the ICO has several ongoing investigations targeting various tech companies who could be breaking the UK’s data protection laws.

This is not the first time TikTok has been under observation by data protection watchdogs. In July a US – Australian cybersecurity firm has found that TikTok gathers excessive amounts of information from their users, and voiced their concern over their findings. Based on these precedents, it could be possible that local data protection authorities will increment their efforts to control TikTok’s compliance with local laws and, in Europe, with the  GDPR.

G7 Data Protection Authorities discuss flow of data across borders

27. September 2022

From September 6th to September 9th, 2022 a meeting between representatives of the G7’s Data Protection Authorities was held in Bonn, Germany, to discuss current regulatory and technological issues concerning the concept of Data Flow with Free Trust (DFFT), a proposed guiding principle for international cooperation on data flows.

It aims at providing answers to several questions in order to create a safe global digital environment in which the protection of data flow is guaranteed. The most important question is: how to overcome the existing data flow barriers? It may seem difficult to introduce a harmonization between countries that have a completely different approach and regulations in regard to personal data protection. To answer this question, a bottom – up approach was adopted for the implementation of the DFFT: it is foreseen that high – level intragovernmental discussions that result in pragmatic rule – making will be held, in order to parallel the public/private relationship for the resolution of individual issues.

Scholars and experts seem to think that RegTech could prove a very useful help to the implementation of the DFFT. To tackle some of the issues that were found in the various discussions and that resulted from research, the World Economic Forum issued a white paper finding seven common success factors that define the best deployment of RegTech.

This concept, first proposed by Japan’s late Prime Minister Shinzo Abe in 2019, is now moving into the implementation phase, mainly concerning trade agreements including e – commerce. A milestone regarding this topic will probably be the next G7 Conference, which will be held in Japan in 2023. Kishida Fumio, the new Japanese Prime Minister, claimed his country’s initiative in the project, and pledged his commitment to the continuous development of the DFFT.

EDPS takes legal action against Europol’s new regulation

ON June 28th 2022, two new provisions of the amended Europol regulation came into force. These changes are considered worrying by the European Data Protection Supervisor (EDPS), as they have a direct impact on the data processing of individuals in the European Union: based on these provisions, the new regulation allows the Europol to retroactively process large volumes of data, even of individuals with no links to criminal activity.

Specifically, before these new provisions were passed, individuals could expect that if their data was gathered by Europol it would be processed within six months in order to establish whether the individual was involved in illicit activities or not, and if the former was the case, that the data related to that person would be deleted. With these modifications, Europol would be allowed to store and process these data even if the individual was found not part of any wrongdoing.

In an effort to stop these changes to effectively come into force, the EDPS issued an order on January 3rd 2022 to amend the new provisions including a precisely determined deletion period for data related to individuals not connected to unlawful activities. Seen as the order was ignored by Europol, on September 16th the EDPS requested that the European Court of Justice (ECJ) annuls these two provisions. The authorities stated that this proceeding by Europol is a clear violation of the individual’s fundamental rights.

Furthermore, it is clear that by overriding a direct order by the European data protection watchdogs and by introducing such amendments the independent controlling power of the supervising authority is undermined: this could set a dangerous precedent by which authorities in the European Union could foresee possible counter – reactions of the legislative power to override their supervising activities depending on political will. This would result in a clear violation of the European Charter of Fundamental Rights, since there would be a concrete risk of undermining the independence of a controlling authority by making it subject to undue political pressure or interference.

noyb files complaints against Google with CNIL in the context of direct marketing emails

30. August 2022

On August 24th, 2022, the Austrian NGO noyb announced that it had filed a complaint against Google with CNIL, the French Supervisory Authority in the context of direct marketing emails.

According to noyb, several google users on whose behalf noyb filed the complaint, have received advertising emails for which these users have not given their consent. This would however contravene Art. 13 (1) ePrivacy Directive which reads the following: “the use […] of electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent.”

The issue of “inbox advertising” has also received the attention of the Court of Justice of the European Union (CJEU). In its judgment from 2021, the CJEU pronounced itself on the lawfulness of this advertising practice holding the view that emails sent to user’s inbox for the purpose of direct marketing require consent.

Noyb highlights in its announcement that “[s]pam is a commercial email sent without consent. And it is illegal. Spam does not become legal just because it is generated by the email provider.”

It remains to be seen whether this complaint will lead to the imposition of a fine by the CNIL.

Danish watchdogs ban Google Chromebooks and Google Workspace in municipality

26. August 2022

In July 2022, after an investigation related to a data breach was carried out by the Danish Data Protection Authority (Datailsynet), Google Chromebooks and Google Workspace were banned in schools in the municipality of Helsingor. The DPA ruled that the risk assessment carried out by city officials shows that the processing of personal data by Google does not meet GDPR requirements. In particular, data transfers have been targeted by the Authority: the Data Processing Agreement allows data transfer to third countries for analytical and statistical support, though the data are primarily stored in Google’s European facilities.

This decision comes in a moment of tension in the world of personal data between Europe and the United States of America: other notorious cases (some still ongoing) are the case of the Irish Data Protection Authority vs. Facebook (now part of Meta Inc.), and the case of the German Federal Cartel Office vs. Facebook. European watchdogs have found that in many cases the American tech giants’ policies do not meet the requirements established by the GDPR. This could be traced back to a lack of legal framework in the field of privacy and personal data protection in the United States, were these companies are based.

This decision was taken in the aftermath of the Schrems II ruling by the European Court of Justice, which stated that the pre-existing agreement on data transfers between Europe and the US (so-called Privacy Shield)was not compatible with the GDPR. A new deal is on the table, but not yet approved nor effective.

Google is becoming the target of various investigations by European data watchdogs, above all because of its tool Google Analytics. In January the Austrian Data Protection Authority published an opinion in which it stated that companies using Google Analytics inadvertently transferred customers’ personal data such as IP addresses to the United States, in breach of the GDPR. Italy’s Garante per la Protezione dei Dati Personali published a similar opinion a few weeks later, stating that “the current methods adopted by Google do not guarantee an adequate level of protection of personal data”.

Personal data risks in the aftermath of the overturning of Roe vs. Wade

23. August 2022

At the end of June 2022, the United States Supreme Court overturned its 1973 ruling in the case of Roe vs. Wade, thus concretely ending federal abortion rights. The decision caused a worldwide outrage, but now a concerning situation presents itself: the massive use of social media and the Internet by the population could result in serious personal privacy violations by the authorities. For example, tech giants such as Apple, Google and Meta Inc. could share users’ data if law enforcement authorities suspect a felony is being committed. This could especially be the case in those States who chose to make abortion illegal after the Supreme Court’s ruling. According to the United States’ Federal Rules of Civil Procedure no. 45, this kind of personal data could be made object of a subpoena, thus forcing the subject to produce them in court. In such a scenario tech companies would have no choice than to provide the consumer’s data. It is clear that this is a high risk for the consumer’s privacy.

In particular, location data could show if a person visited an abortion clinic. Many women use specific apps in order to track periods, fertility and an eventual pregnancy. All these data could be put under surveillance and seized by law enforcement in order to investigate and prosecute abortion – related cases.

In some States this already happened. In 2018 in Mississippi a woman was charged with second – degree murder after seeking health care for a pregnancy loss which happened at home. Prosecutors produced her Internet browser history as proof. After two years she was acquitted of the charges.

Another risk is posed by the so – called data brokers: these are companies that harvest data, cleanse or analyze it and sell them to the highest bidder. These companies could also be used by law enforcement agencies to arbitrarily investigate people who could be related to abortion cases.

The lack of legislation regarding personal data protection is a serious issue in the United States. For example, there is no principle of data minimization as found in the GDPR. The Supreme Courts’ ruling makes this historical moment unexplored territory from a legal point of view. Privacy advisors and activists recommend to try to limit the digital footprint users leave on the web. Also, new laws and bills could be introduce in order to limit the access law enforcement agencies have to personal data.

noyb lodges 226 complaints with 18 different supervisory authorities against websites using “OneTrust” cookie banner software

22. August 2022

On August 9th, 2022, the Austrian NGO noyb announced on its website that it had lodged over 200 complaints with 18 supervisory authorities against several websites that have the cookie banner software “OneTrust” in use.

noyb claims that those banners are designed in a way that nudges the user into clicking the accept button.

According to noyb’s legal analysis, websites that use these cookie banners are neither in conformity with the ePrivacy Directive nor with the GDPR. Further noyb argues: “Deceptive cookie banner designs try to force a user’s agreement by making it insanely burdensome to decline cookies. The GDPR actually requires a fair yes/no choice, not crazy click-marathons.”

It is important to highlight that the complaints were only lodged against companies hosting these websites and using possibly unlawful cookie banners which did not respond to noyb’s emails. Interestingly enough, even companies who have not been contacted by noyb have proceeded, in the mean-time, to update their cookies in accordance with a guiding document provided by noyb.

In response to noyb’s multiple complaints in relation to cookie banners, the EDPB decided to establish a task force in September 2021.

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European Data Protection Board adopts a dispute resolution decision in the context of Instagram

17. August 2022

In early December 2021, the Irish Data Protection Commission (DPC) in its capacity as lead supervisory authority responsible for overseeing Instagram (meta) sent a draft decision to other European supervisory authorities in line with Art. 60 (3) GDPR. In this draft decision, the DPC expressed its concern with instagram’s compliance with several GDPR provisions, notably Art. 5(1)(a) and (c), 6(1), 12(1), 13, 24, 25 and 35 GDPR.

The lead supervisor authority specifically raised the issue of the public disclosure of children’s personal data, such as e-mail addresses and phone numbers, due to their use of the Instagram business account feature.

The respective Supervisory Authorities, however, did not fully agree with the draft decision and issued objections in accordance with Art. 60(4) GDPR. Unable to find common ground on some of the objections, Art. 65(1) (a) GDPR laying down the dispute resolution procedure, became applicable. Consequently, the lead supervisory authority, the DPC, was required to ask the European Data Protection Board (EDPB) to adopt a binding decision.

On July 29, 2022, the EDPB announced that it had adopted a dispute resolution decision following these objections. Now, it is upon the DPC to adopt its final decision and to communicate it to the controller. The DPC has one month to issue its final decision, albeit it should be based on the EDPB decision.

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