Tag: consent

Amex fined for sending four million unlawful emails

15. July 2021

American Express Service Europe Limited (Amex) has received a £ 90,000 fine from the UK Information Commissioner’s Office (ICO) for sending over four million unwanted marketing emails to customers.

The reason for the investigation by UK’s supervisory authority were complaints from Amex customers, which claimed to have been receiving marketing emails even though they had not given their consent to do so. The emails, sent as a part of a campaign, contained information regarding benefits of online shopping, optimal use of the card and encouragement to download the Amex app. According to Amex, the emails were rather about “servicing”, not “marketing”. The company insisted that customers would be disadvantaged if they were not aware of the campaigns and that the emails were a requirement of the credit agreements.

The ICO did not share this view. In its opinion, the emails were aimed at inducing customers to make purchases with their cards in return for a £ 50 benefit, and thus “deliberately” for “financial gain”. This constitutes a marketing activity which, without a valid consent, violates Regulation 22 of the Privacy and Electronic Communications Regulations 2003. The consents and therefore the legal basis were not given in this case.

The ICO Head of Investigations pointed out how important it is for companies to know the differences between a service email and a marketing email to ensure that email communications with customers are compliant with the law. While service messages contain routine information such as changes in terms and conditions or notices of service interruptions, direct marketing is any communication of promotional or marketing material directed to specific individuals.

An Amex spokesperson assured that the company takes customers’ marketing preferences very seriously and has already taken steps to address the concerns raised.

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.

AEPD issues highest fine for GDPR violations

5. March 2021

The Spanish Data Protection Authority, the Agencia Española de Protección de Datos (AEPD), imposed a fine of EUR 6.000.000 on CaixaBank, Spain’s leading retail bank, for unlawfully processing customers’ personal data and not providing sufficient information regarding the processing of their personal data. It is the largest financial penalty ever issued by the AEPD under the GDPR, surpassing the EUR 5.000.000 fine imposed on BBVA in December 2020 for information and consent failures.

In the opinion of the AEPD, CaixaBank violated Art. 6 GDPR in many regards. The bank had not provided sufficient justification of the legal basis for the processing activities, in particular with regard to those based on the company’s legitimate interest. Furthermore, deficiencies had been identified in the processes for obtaining customers’ consent to the processing of their personal data. The bank had also failed to comply with the requirements established for obtaining valid consent as a specific, unequivocal and informed expression of intention. Moreover, the AEPD stated that the transfer of personal data to companies within the CaixaBank Group was considered an unauthorized disclosure. According to Art. 83 (5) lit. a GDPR, an administrative fine of EUR 4.000.000 EUR was issued.

Additionally, the AEPD found that CaixaBank violated Art. 13, 14 GDPR. The bank had not complied with the information obligations since the information regarding the categories of personal data concerned had not been sufficient and the information concerning the purposes of and the legal basis for the processing had been missing entirely. What’s more, the information provided in different documents and channels had not been consistent. The varying information concerned data subjects’ rights, the possibility of lodging a complaint with the AEPD, the existence of a data protection officer and his contact details as well as data retention periods. Besides, the AEPD disapproved of the use of inaccurate terminology to define the privacy policy. Following Art. 83 (5) lit. b GDPR, a fine of EUR 2.000.000 was imposed.

In conclusion, the AEPD ordered CaixaBank to bring its data processing operations into compliance with the legal requirements mentioned within six months.

Norwegian DPA intends to fine Grindr

26. January 2021

The Norwegian Data Protection Authority “Datatilsynet” (in the following “DPA”) announced recently that it intends to fine the online dating provider “Grindr LLC” (in the following “Grindr”) for violations of the GDPR an administrative fine of € 9.6 Mio. (NOK 100 Mio.).

Grindr is a popular and widely used Dating App for gay, bi, trans and queer people and uses a location-based technology to connect the users. Thus, Grindr processes beside personal data also sensitive data like the sexual orientation of the users. The latter are subject to a high level of protection due to the requirements of the GDPR.

The DPA came to the conclusion that Grindr transferred personal data of its users to third parties for marketing purposes without having a legal basis for doing so. In particular, Grindr neither informed the data subjects in accordance with the GDPR nor have obtained consent from the concerned data subject. Datatilsynet considers this case as serious, because the users were not able to exercise real and effective control over the sharing of their data.

Datatilsynet has set a deadline of February 15th, 2021 for Grindr to submit its comments on the case and will afterwards make its final decision.

Belgian DPA planning to suspend websites that infringe GDPR

8. December 2020

The Belgian Data Protection Authority (DPA) signed a Cooperation Agreement on November 26, 2020, with DNS Belgium, the organization behind the management of the “.be” country-code domain name. The background is to allow DNS Belgium to suspend “.be” websites that are infringing the GDPR. The Agreement builds up a two-tier cooperation system, which aims at identifying infringements and suspending the websites if no action is taken.

The first step is a cooperative investigation, for which DNS Belgium has to support the Belgian DPA by providing all information necessary for the investigation.

The second step is the “Notice and Action” procedure, during which, if the Belgian DPA’s Investigation Service considers a data processing activity conducted via a website with a “.be” domain name to infringe one of the data protection principles under the GDPR, and the responsible data controller or data processor does not comply with the DPA’s order to suspend, limit, freeze or end the data processing activity, the Investigation Service is authorized to send a “Notice and Action” notification to DNS Belgium. Once DNS Belgium receives the “Notice and Action” notification, they will proceed to inform the website owner about the infringement and re-direct the relevant domain name to a warning page of the Belgian DPA.

The website owner can take remedial measures within 14 days to remedy the infringement, upon which he can indicate it to the Belgian DPA. If the Belgian DPA does not contest the measures taken, the relevant domain name will be restored. However, if the infringement is not remediated during the 14-day period, the website will continuously to be re-directed to the Belgian DPA’s warning page for a period of six months. After this time the website will be cancelled and placed in quarantine for 40 days before becoming available for registration once again.

Due to the heavy penalty in cases of a controller not taking any action to remedy the infringement, this action by the Belgian DPA is only possible in cases of infringements that cause very serious harm and are committed by natural or legal persons who deliberately infringe the law, or continue a data processing activity despite a prior order by the Investigation Service of the Belgian DPA to suspend, limit, freeze or end the processing activity.

It is to note that the Inspector General of the Belgian DPA can provide extra time to a website owner to comply with the relevant data protection requirements at the Inspector General’s discretion. However, this will depend on a case by case basis and on the cooperation of the website owner.

Appeal against record fine for GDPR violation in Poland dismissed

22. October 2020

On 10th September 2019 the Polish Data Protection Commissioner imposed a record fine in the amount of more than PLN 2,8 million or the equivalent of € 660.000 on the company Morele.net for violating the implementation of appropriate technical and organisational measures as well as the lack of verifiability of the prior consents to data processing. The Krakow-based company runs various online shops and stores customer data on a central database. According to the Personal Data Protection Office (UODO), there has been 2,2 million customers affected.

Starting point were especially two incidents at the end of 2018, when unauthorised persons got access to the customer database of the company and the contained personal data. The company notified the data breach to the UODO, which accused it particularly of violation of the confidentiality principle (Articles 5 (1) lit. f, 24 (1), 25 (1), 32 (1) lit. b, d, (2) GDPR) by failing to use sufficient technical and organisational measures to safeguard the data of its customers, such as a two-factor authentication. As claimed by the UODO, the selection of the authentication mechanism should always be preceded by an adequate risk analysis with a corresponding determination of protection requirements. The company did not adequately comply with this. However, it should have been sufficiently aware of the phishing risks as the Computer Emergency Response Team (CERT Polska) had already pointed it out.

In addition, the UODO accused the company of violation of the lawfulness, fairness, transparency and accountability principles (Articles 5 (1) lit. a, (2), 6 (1), 7 (1) GDPR) by not being able to prove that (where necessary) the personal data from installment applications had been processed on the basis of consents of data subjects. Furthermore, after a risk analysis, the company deleted the corresponding data from the database in December 2018, but according to the UODO, the deletion was not sufficiently documented.

When assessing the fine, there were many aspects which played a decisive role. Most of all, the extent of the violation (2,2 million customers) and the fact that the company processes personal data professionally in the course of its business activities and therefore has to apply a higher level of security. However, mitigating circumstances were also taken into account, such as the good cooperation with the supervisory authority, no previous ascertainable violations of the GDPR and no identifiable financial advantages for the company.

On 3rd September 2020, the Provincial Administrative Court (WSA) in Warsaw issued a judgment on Morele.net’s appeal against the decision. The WSA dismissed the appeal and considered that the decision on the fine imposed on the company was justified. Furthermore, the WSA stated that the UODO had correctly assessed the facts in the case concerned and considered that the fine imposed was high but within the limits of the law and justified by circumstances. It is expected that the company will lodge a complaint with the Supreme Administrative Court of Poland.

Apple’s new iOS Update will enhance Privacy Features

31. August 2020

At its Worldwide Developers Conference 2020 back in June, Apple announced new privacy features coming in a future iOS 14 update for its devices. These updates, coming in the fall, are supposed to include more control of sharing location data and indicators when an app is using the microphone or camera.

The updates mean that it will be further possible to limit how much location information is shared with apps, only allowing it to share approximate data rather than the devices precise location. Apple also introduced labels for app permissions to inform people how much data an app requests, before they even download them. The feature will show people those labels in two categories, on “Data Linked To You” and “Data Used to Track You“. However, this will have to be provided by the app developers themselves, leaving grey areas open.

“For food, you have nutrition labels,” said Erik Neuenschwander, Apple’s user privacy manager. “So we thought it would be great to have something similar for apps. We’re going to require each developer to self-report their practices.”

Further, the privacy updates also incorporate the Safari browser, allowing for a report on privacy while surfing the internet through the use of a “privacy report” button. It will allow the overview of all third-party trackers through one click, and allow the user to block them directly.

Apple also moved from the opt-out standard for apps using the user’s personal data to an opt-in scheme, requiring the active consent of the users in order to allow the use of their data.

While this is a positive development for all Apple users, Facebook states that it sees issues for small developers having to face these new privacy settings.

In a blog post, Facebook said it was making a change to its own apps, which in addition to its flagship app also include WhatsApp and Instagram, that would likely spare them from having to ask iPhone users for data-tracking permissions that many advertising industry insiders believe users will refuse. Facebook also stated it was making changes due to Apple’s new privacy rules that could hurt smaller developers that use a Facebook tool for serving apps in third-party apps.

Overall, Apple’s new privacy rules are a welcomed changes for its users, handing them further control over their own personal data.

German State Data Protection Commissioner imposes 1.2 million € GDPR fine

1. July 2020

The German State Data Protection Commissioner of Baden-Württemberg (“LfDI Ba-Wü”)  imposed a GDPR fine of 1.240.000€ on the German statutory health insurance provider AOK Baden-Württemberg (“AOK”). The fine was a result of the health insurance’s lack of technical and organisational measures pursuant to Art. 32 GDPR. It is the highest fine the LfDI Ba-Wü has ever imposed.

Between 2015 and 2019 the AOK organised lotteries on various occasions and collected personal data of the participants, including their contact details and current health insurance affiliations. The AOK wanted to use the data of the lottery participants for advertising purposes, insofar as the participants gave their consent to this. To ensure the security of processing, the AOK implemented internal guidelines and data protection training of their staff as technical and organisatioal measures. However, these measures were not sufficient to comply with Art. 32 GDPR because AOK staff used the personal data of more than 500 lottery participants for advertising purposes without their prior consent.

Following the investigation of the LfDI Ba-Wü, the AOK immediately stopped all marketing activities in order to revise their internal policies and processes against the GDPR. The LfDI Ba-Wü explained that in determining the extent of the fine, it considered the following mitigating factors:

  • the cooperation of the AOK with the Data Protection Authority,
  • the fact that the AOK as a statutory health insurance provider is an important part of the German healthcare system, and
  • the burdens of the current Corona-Pandemic on the healthcare system.

Finally, the Commissioner pointed out that technical and organisational measures must be regularly adjusted to the actual conditions of each processing activity, in order to ensure an adequate level of data protection in the long term.

Greek Data Protection Authority releases Guidance on Cookies

16. March 2020

On 25 February 2020, the Hellenic Data Protection Authority (DPA) published a guidance on Cookies and other tracking tools. Previously, the Authority had found that Greek websites and service providers have been largely failing to comply with the rules on the use of Cookies and other trackers set out by the ePrivacy Directive and the GDPR, and reaffirmed by the European Court of Justice’s ruling on Planet 49.

The guidance states that it will be relevant to HTTP/S Cookies, Flash Cookies, local storage applying to HTML 5, device fingerprinting, OS identifiers, and material identifiers.

The Greek DPA reiterated that, generally, providers are obliged to obtain the user’s consent if they are using any tracking tools – irrespective of whether the processing of personal data is taking place. It also outlined that technically necessary trackers are exempt from the obligation to consent. Furthermore, the guidance goes into detail on how information and consent can be made available on websites specifically.

Lastly, the Authority has given Greek website providers a grace period of two months to implement the provisions of this guidance and thereby become compliant with the European rules on tracking tools.

Advocate General: No Valid Cookie Consent When Checkbox Is Pre-ticked

25. March 2019

On 21 of March Maciej Szpunar, Advocate General of the European Court of Justice, delivered his Opinion in the case of Planet24 GmbH against Bundesverband Verbraucherzentralen und Vebraucherverbände – Verbaucherzentrale Bundesverband e.V. (Federal Association of Consumer Organisations). In the Opinion, Szpunar explains how to obtain valid consent for the use of cookies.

In the case in question, Planet24 GmbH has organised a lottery campaign on the internet. When registering to participate in the action lottery, two checkboxes appeared. The first checkbox, which did not contain a pre-selected tick, concerned permission for sponsors and cooperation partners to contact the participant in order to inform him of their offers. The second checkbox, which was already ticked off, concerned the consent to the setting of cookies, which evaluate the user’s surfing and usage behaviour.

The Federal Association held that the clauses used infringed german law, in particular Article 307 of the BGB, Article 7(2), point 2, of the UWG and Article 12 et seq. of the TMG and filed a lawsuit in 2014 after an unsuccessful warning.

In the course of the instances, the case ended up at the German Federal Supreme Court in 2017. The German Federal Court considers that the success of the case depends on the interpretation of Articles 5(3) and 2(f) of Directive 2002/58, read in conjunction with Article 2(h) of Directive 95/46, and of Article 6(1)(a) of Regulation 2016/679. For that reason, it asked the European Court of Justice the following questions for a preliminary ruling:

(1) Does consent given on the basis of a pre-ticked box meet the requirements for valid consent under the ePrivacy Directive, the EU Data Protection Directive and the EU General Data Protection Regulation (the GDPR)?

(2) What information does the service provider have to provide to the user and does this include the duration of the use of cookies and whether third parties have access to the cookies?

According to the Advocate General, there is no valid consent if the checkbox is already ticked. In such case, the user must remove the tick, i.e. become active if he/she does not agree to the use of cookies. However, this would contradict the requirement of an active act of consent by the user. It is necessary for the user to explicitly consent to the use of cookies. Therefore, it is also not sufficient if one checkbox is used to deal with both the use of cookies and participation in the action lottery. Consent must be given separately. Otherwise the user is not in the position to freely give a separate consent.

In addition, Szpunar explains that the user must be provided with clear and comprehensive information that enables the user to easily assess the consequences of his consent. This requires that the information provided is unambiguous and cannot be interpreted. For this purpose, the information must contain details such as the duration of the operation of cookies, as well as whether third parties have access to the cookies.

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