Tag: cookies

CNIL plans to start enforcement on Ad Tracker Guideline

7. April 2021

Starting from April 1st, 2021, the French supervisory authority the Commission Nationale de l’Informatique et des Libertés (CNIL) is planning on starting its enforcement of Ad Tracker usage across the internet.

Following its Ad Tracker Guideline, the CNIL gave companies a time frame to adjust ad tracker usage and ensure compliance with the Guideline as well as the GDPR. This chance for the companies to adjust their ad tracker usage has ended on March 31st, 2021.

The new rules on cookies and ad trackers mainly revolve around the chance for the user to give active, free and informed consent. User consent for advertising cookies must be granted by a “clear and positive act”. This encompasses actions such as clicking an “I accept” button and no longer can be agreed to by simply continuing to use the website.

In addition, cookie banners must not only give the option to accept, they also have to give the option to reject. The act to reject cookie has to be as simple and easy as the act to accept cookies. Referring to “Cookie Options” is no longer a valid form of rejection, as it makes the user have to go through an extra step which may dissuade them from rejecting cookies. A valid option remains rejecting cookies by closing the Cookie Banner, but it has to be ensured that unless the cookies are indeed accepted, none but the essential cookies are activated.

Lastly, the Cookie Banner has to give a short information on the usage of the cookies. The CNIL’s Guideline allows for a more detailed information to be linked in the Cookie Banner, however companies should also give a short information in the Cookie Banner in order to be able to obtain “informed” consent.

At the beginning of March, the CNIL announced that “compliance with the rules applicable to cookies and other trackers” would be one of its three priorities for 2021, along with cybersecurity and the protection of health data. In a first act to follow that goal, the CNIL will now begin to conduct checks to ensure websites are in compliance with advertising tracker guidelines.

It is expected that companies that did not adjust their cookie and ad tracker usages will face fines according to the level of lacking compliance.

Google plans to stop the use of cookie tracking

15. March 2021

Google announces to stop the usage of third-party cookies in its browser Google Chrome and proclaim they will not implement other similar technologies that could track individuals while surfing on the web.

Cookies are small pieces of code used on almost every website. They are automatically downloaded when a user visits a website and from then on send data from the user back to the website operator. From this data, companies can create profiles of the user and personalize advertising based on the data collected. Originally, cookies were intended to give web browsers a “memory”. With cookies, online shops save shopping carts and users can stay logged in to online sites.

In a Blogpost published on March 3rd, 2021, David Temkin, Director of Product Management, Ads Privacy and Trust at Google, announced that the next update Google Chrome in April will allow cookie tracking to be turned of completely. With Google Chrome, only so-called “first-party cookies” of the respective website operator remain permitted. The decision will have lasting consequences, as Google Chrome has been the most widely used browser since 2012. The move comes after Google’s competitors Apple and Mozilla announced similar mechanisms for their Safari and Firefox browsers (please see our blog post). Temkin writes:

Keeping the internet open and accessible for everyone requires all of us to do more to protect privacy — and that means an end to not only third-party cookies, but also any technology used for tracking individual people as they browse the web.

Since the personalized advertising based on data, and thus the tracking of the data, is Google’s core business, Google will not stop either the data collection or the personalization of the advertising. Instead of individual profiles, Google will form cohorts of people with similar interests, to which advertising will be tailored. These cohorts are said to be broad enough to preserve the anonymity of individual users. This concept is called “Federated Learning of Cohorts” (FLoC). Google Ads FLoC based advertising is said to start in the second quarter of 2021.

Data will then be collected by the browser and stored locally and not by cookies. Every URL on a website and every content accessed can then be accessed by Google targeting algorithm. Algorithms on the end device are to calculate hash values from the browser history, for example, which enable the assignment to such a cohort. Google sends a selection of ads to the browser, which selects ads that match the cohort and shows them to the user.

While third-party cookies are gradually becoming obsolete, Google is replacing them with a system that Google can completely control itself. This will make it more difficult for competitors such as Facebook Ads in the future, as they will have to rely primarily on first-party data and on data obtained from cookies in smaller browsers.

Firefox introduces new tool to prevent cookie-based tracking

12. March 2021

Mozilla has announced the introduction of a new privacy tool for its Firefox browser, “Total Cookie Protection”, aimed at blocking cookie-based tracking by ad-tech companies. The new feature prevents cross-site tracking by confining cookies to the website where they were created and placing them into a so-called “cookie jar”.

Mozilla refers to cookies as “a useful technology, but also a serious privacy vulnerability” because they are shared between websites which enables tracking user’s browsing behavior. This approach allows advertising companies, in particular, to gather information about users, their browsing habits and interests as well as create detailed personal profiles.

Total Cookie Protection works by maintaining a separate “cookie jar”, assigned to each website visited. This procedure prohibits the deposited cookie from being shared with any other website. A limited exception only applies to cross-site cookies needed for non-tracking purposes.

Firefox has blocked some cookies used by ad-tech companies for years in an effort to fight against cookie abuse and web tracking. In order to achieve this goal, “Enhanced Tracking Protection” (ETP) was introduced in 2019. It blocks many of the companies identified as trackers by Mozilla’s partners at Disconnect. Despite being an effective strategy to stop tracking, this form of cookie blocking has its limitations, Johann Hofmann and Tim Huang remark on the developer blog Mozilla Hacks:

ETP protects users from the 3000 most common and pervasive identified trackers, but its protection relies on the fact that the list is complete and always up-to-date. Ensuring completeness is difficult, and trackers can try to circumvent the list by registering new domain names. Additionally, identifying trackers is a time-consuming task and commonly adds a delay on a scale of months before a new tracking domain is added to the list.

With this in view, Total Cookie Protection has been built into ETP as a new privacy advance. The feature intends to address the limitations of ETP and provide more comprehensive protection. It is complemented by Supercookie Protections rolled out last month, which shall eliminate the usage of non-traditional storage mechanisms (“supercookies”) as a tracking vector.

In conclusion, Mozilla stated:

Together these features prevent websites from being able to “tag” your browser, thereby eliminating the most pervasive cross-site tracking technique.

CNIL fines Google and Amazon

10. December 2020

The French Data Protection Authority Commission Nationale de l’Informatique et des Libertès – “CNIL” – announced that it has fined the big tech companies Google and Amazon due to violations of the GDPR and the French Data Protection Act.

Regarding Google CNIL announced financial penalties of an combined record breaking amount of € 100 million. € 60 million are against Google LLC, the US-based mother company, and € 40 million against Google Ireland Limited, the Irish daughter company. According to the statement of CNIL the fines are based on violations regarding the Cookie requirements on the website google.fr. Due to an online investigation, conducted on March 16th, 2020, CNIL considers it as proven that Google “placed advertising cookies on the computers of users of the search engine google.fr, without obtaining prior consent and without providing adequate information”.

Besides the findings on Cookies, CNIL also critizes a lack of information on the processed personal data and a partial failure of the opposition mechanism.

The high amount of the financial penalties is justified with the seriousness of the violation, the high amount of concerned data subjects and the significant profits of the companies arising of the advertisements.

CNIL also considers the fact, that this procedure is no longer in place since an update in September 2020, because the newly implemented banner does not allow to understand the purposes for which the cookies are used and does not let the data subject know that they can refuse the coolies.

This is already the second, financial penalty CNIL imposes against Google.

Also for violations in connection with cookies CNIL fines Amazon Europe Core a financial penalty of € 35 million. The accusation is the same as with Google and based on several investigations conducted between December 12th, 2019 and May 19th, 2020. CNIL found out, that when a user visited the website, cookies were automatically placed on his or her computer, without any action required on the users part. Several of these cookies were used for advertising purposes. Also a lack of information has been conducted.

The high amount of the financial penalties is in all cases justified with the seriousness of the violation, the high amount of concerned data subjects and the significant profits of the companies arising of the advertisements.

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.

Privacy Activist Schrems unleashes 101 Complaints

21. September 2020

Lawyer and privacy activist Maximilian Schrems has become known for his legal actions leading to the invalidation of “Safe Harbor” in 2015 and of the “EU-U.S. Privacy Shield” this year (we reported). Following the landmark court decision on the “EU-U.S. Privacy Shield”, Schrems recently announced on the website of his NGO “noyb” (non-of-your-business) that he has filed 101 complaints against 101 European companies in 30 different EU and EEA countries with the responsible Data Protection Authorities. Schrems exercised the right to lodge a complaint with the supervisory authority that every data subject has if he or she considers that the processing of personal data relating to him or her infringes the Regulation, pursuant to Art. 77 GDPR.

The complaints concern the companies’ continued use of Google Analytics and Facebook Connect that transfer personal data about each website visitor (at least IP-address and Cookie data) to Google and Facebook which reside in the United States and fall under U.S. surveillance laws, such as FISA 702. Schrems also published a list of the 101 companies which include Sky Deutschland, the University of Luxembourg and the Cyprus Football Association. With his symbolic action against 101 companies, Schrems wanted to point to the widespread inactivity among many companies that still do not take the data protection rights of individuals seriously despite the recent ruling by the Court of Justice of the European Union.

In response, the European Data Protection Board (“EDPB”) has set up a “task force” to handle complaints against European companies using Google Analytics and Facebook services. The taskforce shall analyse the matter and ensure a close cooperation among the members of the Board which consists of all European supervisory authorities as well as the European Data Protection Supervisor.

France’s supreme court, the Conseil d’État, restricts the CNIL’s Cookie Guidelines

22. June 2020

On June 19th, 2020, the French Conseil d’État has ordered the Commission Nationale de l’Informatique et des Libertés (CNIL) in a court decision to dismiss particular provisions made in its Guidelines on the subject of cookies and other tracers, which it published in 2019.

The Conseil d’État has received several complaints by businesses and professional associations, who turned to the supreme court in order to have the CNIL’s Guidelines refuted.

The main focus of the decision was the ban on cookie walls. Cookie walls are cookie consent pages which, upon declining consent to the processing of the cookies used for the website, deny the user access to the website. In their Guideline on cookies and other tracers from 2019, the CNIL had declared that such cookie walls were not in accordance with the principles of the General Data Protection Regulation (GDPR), causing a lot of businesses to appeal such a provision in front of the Conseil d’État.

In their decision on the matter, the Conseil d’État has declared that the CNIL, as only having suggestive and recommendatory competence in data protection matters, did not have the competence to issue a ban on cookie walls in the Guidelines. The Conseil d’État focused on the fact that the CNIL’s competence was only recommendatory, and did not have the finality to issue such a provision.

However, in its decision, the supreme court did not put to question whether the ban of cookie walls was in itself lawful or not. The Conseil d’État refrained from giving any substantive statement on the matter, leaving that question unanswered for the moment.

The Conseil d’État has further stated in its decision that in the case of the ability of data subjects to give their consent to processing activities, it is indeed necessary, in order to form free and informed consent, that the data subject is informed individually about each processing activity and its purpose before giving consent. However, business have the margin to decide if they collect the data subject’s consent througha one time, global consent with specifically individualized privacy policies, or over individual consent for each processing activity.

In the rest of its decision, the Conseil d’État has confirmed the remainder of the CNIL’s guidelines and provision on the matter as being lawful and applicable, giving the complainants only limited reason to rejoice.

Belgian DPA releases Guidance and FAQs on Cookies and Trackers

23. April 2020

On Thursday, April 9th 2020, the Belgian Data Protection Authority (Belgian DPA) has issued a guidance along with frequently asked question on the subject of cookies and other tracking technologies.

The key points presented by the guidance revolve around the definitions of cookies, what needs to be presented in a cookie policy, how the consent of data subjects needs to be obtained and which requirements it needs to fulfill, as well as the storage period of a cookie on a user’s device.

The Belgian DPA made it clear that of the utmost importance is the transparency of the cookie usage. That entails that the users need to be informed about the scope of each individual cookie used. This should be done through a cookie policy on the website. The cookie policy needs to be written in a language the targeted users of the website can understand, as well as be easily accessible, e.g. through a hyperlink.

Specifically, these cookie policies need to include and inform about:

  • identification of the cookies used;
  • their purposes and duration;
  • whether third-parties have access to such cookies;
  • information about how to delete cookies;
  • the legal basis relied upon for the use of cookies;
  • information about individuals’ data protection rights and the ability to lodge a complaint to the competent data protection authority;
  • information about any automated decision making, including profiling.

In order to be able to use cookies, the consent of the user needs to be obtained. The Belgian DPA stated in their guidance that the consent has to be obtained for the use of all non-essential cookies, which means all cookies that are not necessary for a user requested function of the website. A necessary cookie would be, for example, the cookie to remember the item in a user’s cart, or cookies that enable booking communication with a user.

The consent especially needs to be:

  • obtained for the use of all non-essential cookies, as well as all social media plugins;
  • informed, specifically, prior to giving their consent to the use of cookies, users must be provided with information regarding the use of cookies: The information that needs to be given to the data subjects are the entity responsible for the use of cookies, the cookies’ purposes,  the data collected through the use of cookies, and their expiration. Users must also be informed about their rights with respect to cookies, including the right to withdraw their consent;
  • granulated, whereas in a first instance, users need to decide between what types of cookies they want to give consent to, and in a second instance, users can decide exactly which cookies they want to give consent to;
  • unambiguous and provided through a clear affirmative action.

Further, it is also important to keep in mind that the Belgian DPA has confirmed that cookie walls are unlawful, and that companies must show proof of obtained consent through keeping logs.

The Belgian DPA has also given guidance on the lifespan of cookies. Cookies should not have unlimited lifespans, but rather follow basic data protection rules: once a cookie is no longer necessary for the purpose or it has fulfilled its determined purpose, it needs to be removed. If the cookie cannot be deleted from the controller’s side, it is important to give the users the information on how to do it themselves.

Overall, the Belgian DPA’s guidance has given controllers a clear way to maneuvering their cookie usage, and has provided a new list of FAQs in case of further questions. In this regard, the Belgian DPA has made sure that cookies and their use are easy to comprehend and handle, hopefully helping data protection compliance within the subject.

CNIL announces focus for Control Procedures in 2020

16. March 2020

The french Commission Nationale de l’Informatique et des Libertés (CNIL) has announced their focus in regards to the Control Procedures they intend to take in 2020.

Out of 300 Control Procedures done in one year, in 2020 at least 50 of those are going to be focused on three prioritized themes: health data security, geolocation and cookies compliance. The CNIL decided on prioritizing these areas because of the high relevance all of them have on the daily life of the french citizens.

Especially in regards to health data because of the sensitive nature of the data collected, as well as geological data, due to the never ending new solutions to transportation or enhancements to daily life, it is important to keep an eye on the scope of the data processing and the private sphere which is affected.

Regarding cookies and other tracers, CNIL continues to underline the importance in regards to profiled advertisement. On top of the planned Control Procedures, the CNIL intends to publish a recommendation in the spring of 2020 with regards to cookies. It will keep an eye on the implementation of the recommendation, and give companies a 6 months period to adjust and implement them.

The CNIL also stated that in addition they will continue to work together with other national Data Protection Authorities, in order to ensure the regulation of transnational data processing.

Greek Data Protection Authority releases Guidance on Cookies

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.

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