Tag: Facebook

CJEU considers representative actions admissible

29. April 2022

Associations can bring legal proceedings against companies according to a press release of the European Court of Justice (CJEU).

This is the conclusion reached by the Court in a decision on the proceedings of the Federation of German Consumer Organisations (vzbv), which challenged Facebook’s data protection directive. Accordingly, it allows a consumer protection association to bring legal proceedings, in the absence of a mandate conferred on it for that purpose and independently of the infringement of specific rights of the data subjects, against the person allegedly responsible for an infringement of the laws protecting personal data, The vzbv is an institution that is entitled to bring legal proceeding under the GDPR because it pursues an objective in the public interest.

Specifically, the case is about third-party games on Facebook, in which users must agree to the use of data in order to be able to play these games on Facebook. According to the association, Facebook has not informed the data subjects in a precise, transparent and understandable form about the use of the data, as is actually prescribed by the General Data Protection Regulation (GDPR). The Federal Court of Justice in Germany (BGH) already came to this conclusion in May 2020 however, it was not considered sufficiently clarified whether the association can bring legal proceedings in this case.

The EU Advocate General also concluded before that the association can bring legal proceeding in a legally non-binding statement.

Thus, the CJEU confirmed this view so that the BGH must now finally decide on the case of vzbv vs. facebook. It is also important that this decision opens doors for similar collective actions against other companies.

Irish DPC fines Meta 17 Million Euros over 2018 data breaches

16. March 2022

On March 15th, 2022, the Irish Data Protection Commission (DPC) has imposed a fine on Meta Platforms 17 million euros over a series of twelve data breaches, which happened from June to December 2018.

The inquiry of the DPC which led to this decision examined the extent to which Meta Platforms complied with the requirements of Arti. 5(1)(f), Art. 5(2), Art. 24(1) and Art. 32(1) GDPR in relation to the processing of personal data relevant to the twelve breach notifications.

As the result of this inquiry, the DPC found that Meta Platforms infringed Art. 5(2) and 24(1) GDPR.  In particular, the DPC assessed that Meta Platforms failed to have in place appropriate technical and organisational measures which would enable it to readily demonstrate the security measures that it implemented in practice to protect the data of its European users in the case of those twelve data breaches.

The processing under examination constituted a “cross-border” processing, and as such the DPC’s decision was subject to the co-decision-making process outlined in Art. 60 GDPR. This resulted in all of the other European supervisory authorities to be engaged in this decision as co-decision-makers.  While objections to the DPC’s draft decision were raised by two of the European supervisory authorities, consensus was achieved through further engagement between the DPC, and the supervisory authorities concerned.

“Accordingly, the DPC’s decision represents the collective views of both the DPC and its counterpart supervisory authorities throughout the EU,” the DPC stated in their press release.

A Meta spokesperson has commented on the decision, stating, “This fine is about record keeping practices from 2018 that we have since updated, not a failure to protect people’s information. We take our obligations under the GDPR seriously and will carefully consider this decision as our processes continue to evolve.”

Apps are tracking personal data despite contrary information

15. February 2022

Tracking in apps enables the app providers to offer users personalized advertising. On the one hand, this causes higher financial revenues for app providers. On the other hand, it leads to approaches regarding data processing which are uncompliant with the GDPR.

For a year now data privacy labels are mandatory and designed to show personal data the app providers access (article in German) and provide to third parties. Although these labels on iPhones underline that data access does not take place, 80% of the analyzed applications that have these labels have access to data by tracking personal information. This is a conclusion of an analysis done by an IT specialist at the University of Oxford.

For example, the “RT News” app, which supposedly does not collect data, actually provides different sets of data to tracking services like Facebook, Google, ComScore and Taboola. However, data transfer activities have to be shown in the privacy labels of apps that may actually contain sensitive information of viewed content.

In particular, apps that access GPS location information are sold by data companies. This constitutes an abuse of data protection because personal data ishandled without being data protection law compliant and provided illegally to third parties.

In a published analysis in the Journal Internet Policy Review, tests of two million Android apps have shown that nearly 90 percent of Google’s Play Store apps share data with third parties directly after launching the app. However, Google indicates that these labels with false information about not tracking personal data come from the app provider. Google therefore evades responsibility for the implementation for these labels. Whereby, Apple asserts that controls of correctness are made.

Putting it into perspective, this issue raises the question whether these privacy labels make the use of apps safer in terms of data protection. One can argue that, if the app developers can simply give themselves these labels under Google, the Apple approach seems more legitimate. It remains to be seen if any actions will be taken in this regard.

EU Advocate General : Member States may allow consumer protection associations to bring representative actions against infringements of the protection of personal data

16. December 2021

On December 2nd, EU Advocate General Richard de la Tour published an opinion in which he stated that EU member states may allow consumer protection associations to bring representative actions against infringements of rights that data subjects derive directly from the General Data Protection Regulation (“GDPR”). In doing so, he agrees with the legal opinion of the Federation of the Bundesverband der Verbraucherzentralen und Verbraucherverbände – Verbraucherzentrale Bundesverband e.V. (Federation of German Consumer Organisations (“vzbv”)), which has filed an action for an injunction against Facebook in German courts for non-transparent use of data.

The lawsuit of the vzbv is specifically about third-party games that Facebook offers in its “App Center”. In order to play games like Scrabble within Facebook, users must consent to the use of their data. However, Facebook had not provided information about the use of the data in a precise, transparent and comprehensible manner, as required by Article 13 GDPR. The Federal Court of Justice in Germany (“Bundesgerichtshof”) already came to this conclusion in May 2020, but the Bundesgerichtshof considered it unclear whether associations such as the vzbv have the legal authority to bring data protection violations to court. It argues, inter alia, that it can be inferred from the fact that the GDPR grants supervisory authorities extended supervisory and investigatory powers, as well as the power to adopt remedial measures, that it is primarily the task of those authorities to monitor the application of the provisions of the Regulation. The Bundesgerichtshof therefore asked the Court of Justice of the European Union (“CJEU”) to interpret the GDPR. The Advocate General now affirms the admissibility of such an action by an association, at least if the EU member state in question permits it. The action for an injunction brought by the vzbv against Facebook headquarters in Ireland is therefore deemed admissible by the EU Advocate General.

The Advocate General states, that

the defence of the collective interests of consumers by associations is particularly suited to the objective of the General Data Protection Regulation of establishing a high level of personal data protection.  

The Advocate General’s Opinion is not legally binding on the CJEU. The role of the Advocate General is to propose a legal solution for the cases to the CJEUin complete independence. The judges of the Court will now begin their consultations in this case.

High Court dismisses Facebook’s procedural complaints in Data Transfer Case

18. May 2021

On Friday, May 14th 2021, the Irish High Court dismissed all of Facebook’s procedural complaints in a preliminary decision from Ireland’s Data Protection Commission regarding data transfers from the EU to the U.S. It rejected Facebook’s claims that the privacy regulator had given it too little time to respond or issued a judgment prematurely.

If finalized, the preliminary decision could force the social-media company to suspend sending personal information about EU users to Facebook’s servers in the U.S. While the decision of the High Court was only a procedural one, experts warn that the logic in Ireland’s provisional order could apply to other large tech companies that are subject to U.S. surveillance laws. This could potentially lead to a widespread disruption of trans-Atlantic data flows.

Facebook addressed the preliminary decision, stating that Friday’s court decision was procedural and that it planned to defend its data transfers before the Irish Data Protection Commission (DPC). It added that the regulator’s preliminary decision could be “damaging not only to Facebook, but also to users and other businesses.”

However, the Irish DPC still needs to finalize its draft decision ordering a suspension of data transfers and submit it to other EU privacy regulators for approval before it comes into effect. That process could take months, not counting potential other court challenges by Facebook.

Irish DPC launches investigation into Facebook data leak

26. April 2021

On April 14th, 2021, Ireland’s Data Protection Commission (DPC) announced it launched an investigation into Facebook’s data leak reported earlier this month (please see our blog post here). The inquiry was initiated on the Irish DPC’s own volition according to section 110 of the Irish Data Protection Act. It comes after a dataset of 533 million Facebook users worldwide was made available on the internet.

The Irish DPC indicated in a statement that, “having considered the information provided by Facebook Ireland regarding this matter to date, the DPC is of the opinion that one or more provisions of the GDPR and/or the Data Protection Act 2018 may have been, and/or are being, infringed in relation to Facebook Users’ personal data”. The Irish DPC further stated that they had engaged with Facebook Ireland in relation to this reported issue, raising queries in relation to GDPR compliance, to which Facebook Ireland furnished a number of responses.

The launch of an investigation by the Irish authorities is significant due to the fact that Ireland remains home to Facebook’s European headquarters. This means the Irish DPC would act as the lead regulator within the European Union on all matters related to it. However, Ireland’s data watchdog has faced criticism from privacy advocates for being too slow with its GDPR investigations into large tech companies. In fact, the inquiry comes after the European Commission intervened to apply pressure on Ireland’s data protection commissioner.

Facebook’s statement on the inquiry has been shared through multiple media, and it has announced that Facebook is “cooperating fully with the DPC in its enquiry, which relates to features that make it easier for people to find and connect with friends on our services. These features are common to many apps and we look forward to explaining them and the protections we have put in place.”

Facebook data leak affects more than 500 million users

7. April 2021

Confidential data of 533 million Facebook users has surfaced in a forum for cybercriminals. A Facebook spokesperson told Business Insider that the data came from a leak in 2019.

The leaked data includes Facebook usernames and full name, date of birth, phone number, location and biographical information, and in some cases, the email address of the affected users. Business Insider has verified the leaked data through random sampling. Even though some of the data may be outdated, the leak poses risks if, for example, email addresses or phone numbers are used for hacking. The leak was made public by the IT security firm Hudson Rock. Their employees noticed that the data sets were offered by a bot for money in a hacking forum. The data set was then offered publicly for free and thus made accessible to everyone.

The US magazine Wired points out that Facebook is doing more to confuse than to help clarify. First, Facebook referred to an earlier security vulnerability in 2019, which we already reported. This vulnerability was patched in August last year. Later, a blog post from a Facebook product manager confirmed that it was a major security breach. However, the data had not been accessed through hacking, but rather the exploitation of a legitimate Facebook feature. In addition, the affected data was so old that GDPR and U.S. privacy laws did not apply, he said. In the summer of 2019, Facebook reached an agreement with the U.S. Federal Trade Commission (FTC) to pay a $5 billion fine for all data breaches before June 12, 2019. According to Wired, the current database is not congruent with the one at issue at the time, as the most recent Facebook ID in it is from late May 2019.

Users can check whether they are affected by the data leak via the website HaveIBeenPwned.

CJEU Advocate General’s opinion on GDPR’s One-Stop-Shop mechanism

26. January 2021

On January 13, 2021, the Advocate General (“AG”) of the Court of Justice of the European Union (“CJEU”) published an opinion in the case of Facebook Ireland Limited, Facebook INC, Facebook Belgium BVBA v the Belgian Data Protection Authority “Gegevensbeschermingsautoriteit” (“Belgian DPA”), addressing the General Data Protection Regulation’s (“GDPR”) One-Stop-Shop mechanism.

In 2015, the Belgian DPA initiated several legal proceedings against Facebook Group members in local courts. The allegation was that Facebook placed cookies on devices of Belgian users without their consent, thereby collecting data in an excessive manner. Facebook argued that with the GDPR becoming applicable in 2018, the Belgian DPA lost its competence to continue the legal proceedings, as Facebook’s lead supervisory authority under the GDPR is the Irish Data Protection Commission. The Belgian Court of Appeal referred several questions to the CJEU, including whether the GDPR’s One-Stop-Shop regime prevented national DPA’s from initiating proceedings in the national courts when it is not the lead DPA.

The AG responded that, in his opinion, the lead DPA has the general jurisdiction over cross-border data processing, while a national DPA may exceptionally bring proceedings before its own national courts. The national DPA’s right is subject to the One-Stop-Shop regime and cooperation and consistency mechanism of the GDPR. Thus, each national DPA has the competence to initiate proceedings against possible infringements affecting its territory, the significant regulatory role of the lead DPA limits this competence with respect to cross-border data processing.

One of the concerns expressed by the Belgian DPA was the risk of insufficient enforcement if only lead DPA’s may act against organizations that do not comply with the GDPR. In this regard, the GA emphasizes that Art. 61 GDPR specifically provides for appropriate mechanisms to address such concerns. National DPA’s have the possibility to ask the lead DPA for assistance in investigations, and if such assistance is not provided, the national DPA concerned may take action itself.

In certain circumstances, the AG sees the possibility for national DPAs not acting as lead DPA to initiate proceedings before their national court, if

  • the DPA is acting outside of the material scope of the GDPR; e.g., because the processing does not involve personal data;
  • cross-border data processing is carried out by public authorities, in the public interest, or to comply with legal obligations;
  • the processor is not established in the EU;
  • there is an urgent need to act to protect the rights and freedoms of data subjects (Art. 66 GDPR);
  • the lead DPA has decided not to process a case.

With regards to data subjects, the AG notes that data subjects can bring action against any controller or processor before the court of their Member State and may file a complaint with their Member State’s DPA, regardless of which Member State’s DPA is the lead DPA.

The AG’s opinion is not legally binding on the CJEU, although the CJEU will take it into account. A final judgment of the CJEU is expected in the coming months. Thereafter, the Belgian Court of Appeal will have to decide its case in accordance with the CJEU’s judgment. The CJEU’s decision will most likely have a lasting impact on the division of roles between lead DPAs and other national DPAs, as well as on the ability of national DPAs to take enforcement actions into their own hands.

WhatsApp’s privacy policy update halted

22. January 2021

Already at the beginning of December 2020, first indications came up signaling that WhatsApp will change its terms of service and privacy policy. Earlier this year, users received the update notice when launching the app on their device. It stated that the new terms concern additional information on how WhatsApp processes user data and how businesses can use Facebook hosted services to store and manage their WhatsApp chats. The terms should be accepted by February 8th, 2021, to continue using the chat service. Otherwise, the deletion of the account was suggested, because it will not be possible to use WhatsApp without accepting the changes. The notice has caused all sorts of confusion and criticism, because it has mistakenly made many users believe that the agreement allows WhatsApp to share all collected user data with company parent Facebook, which had faced repeated privacy controversies in the past.

Users’ fears in this regard are not entirely unfounded. As a matter of fact, outside the EU, WhatsApp user data has already been flowing to Facebook since 2016 – for advertising purposes, among other things. Though, for the EU and the United Kingdom, other guidelines apply without any data transfer.

The negative coverage and user reactions caused WhatsApp to hastily note that the changes explicitly do not affect EU users. Niamh Sweeney, director of policy at WhatsApp, said via Twitter that it remained the case that WhatsApp did not share European user data with Facebook for the purpose of using this data to improve Facebook’s products or ads.

However, since the topic continues to stir the emotions, WhatsApp felt compelled to provide clarification with a tweet and a FAQ. The statements make it clear once again that the changes are related to optional business features and provide further transparency about how the company collects and uses data. The end-to-end encryption, with which chat content is only visible to the participating users, will not be changed. Moreover, the new update does not expand WhatsApp’s ability to share data with Facebook.

Nevertheless, despite all efforts, WhatsApp has not managed to explain the changes in an understandable way. It has even had to accept huge user churn in recent days. The interest in messenger alternatives has increased enormously. Eventually, the public backlash led to an official announcement that the controversial considered update will be delayed until May 15th, 2021. Due to misinformation and concern, users shall be given more time to review the policy on their own in order to understand WhatsApp’s privacy and security principles.

Apple to delay iOS 14 Ad Tracking Changes

9. September 2020

In an update from Apple on Thursday, 3rd of September 2020, it was announced that some of the plans that were supposed to be launched in the new iOS 14 update are being delayed. The new feature of iOS developers having to request permission from app users before collecting their data for ad tracking is being pushed back to the beginning of 2021.

This and other features are seen as a big step towards users’ privacy, which you can read up on in our previous blogpost, but they have been criticised by app developers and big tech giants alike.

The permission feature was supposed to change the way users’ privacy is being accessed, from the current opt-out method to an opt-in one. “When enabled, a system prompt will give users the ability to allow or reject that tracking on an app-by-app basis,” stated Apple.

However, this will be delayed until early next year, due to the fact that the changes would affect a large amount of the platforms’ publishers, which rely strongly on ad tracking revenue. Facebook criticized the changes and announced that some of their tools may lose efficiency, and hence cause problems for smaller app developers. To combat this issue, Apple said: “We want to give developers the time they need to make the necessary changes, and as a result, the requirement to use this tracking permission will go into effect early next year.”

In recent years, Apple has taken its users’ privacy more seriously, launching new adjustments to ensure their right to privacy is being integrated in their devices.

„We believe technology should protect users’ fundamental right to privacy, and that means giving users tools to understand which apps and websites may be sharing their data with other companies for advertising or advertising measurement purposes, as well as the tools to revoke permission for this tracking,” Apple emphasized.

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