Tag: noyb

CNIL judges use of Google Analytics illegal

14. February 2022

On 10th February 2022, the French Data Protection Authority Commission Nationale de l’Informatique et des Libertés (CNIL) has pronounced the use of Google Analytics on European websites to not be in line with the requirements of the General Data Protection Regulation (GDPR) and has ordered the website owner to comply with the requirements of the GDPR within a month’s time.

The CNIL judged this decision in regard to several complaints maybe by the NOYB association concerning the transfer to the USA of personal data collected during visits to websites using Google Analytics. All in all, NOYB filed 101 complaints against data controllers allegedly transferring personal data to the USA in all of the 27 EU Member States and the three further states of European Economic Area (EEA).

Only two weeks ago, the Austrian Data Protection Authority (ADPA) made a similar decision, stating that the use of Google Analytics was in violation of the GDPR.

Regarding the French decision, the CNIL concluded that transfers to the United States are currently not sufficiently regulated. In the absence of an adequacy decision concerning transfers to the USA, the transfer of data can only take place if appropriate guarantees are provided for this data flow. However, while Google has adopted additional measures to regulate data transfers in the context of the Google Analytics functionality, the CNIL deemed that those measures are not sufficient to exclude the accessibility of the personal data for US intelligence services. This would result in “a risk for French website users who use this service and whose data is exported”.

The CNIL stated therefore that “the data of Internet users is thus transferred to the United States in violation of Articles 44 et seq. of the GDPR. The CNIL therefore ordered the website manager to bring this processing into compliance with the GDPR, if necessary by ceasing to use the Google Analytics functionality (under the current conditions) or by using a tool that does not involve a transfer outside the EU. The website operator in question has one month to comply.”

The CNIL has also given advice regarding website audience measurement and analysis services. For these purposes, the CNIL recommended that these tools should only be used to produce anonymous statistical data. This would allow for an exemption as the aggregated data would not be considered “personal” data and therefore not fall under the scope of the GDPR and the requirements for consent, if the data controller ensures that there are no illegal transfers.

EDPB creates “Cookie Banner Taskforce”

5. October 2021

On September 27, 2021, the European Data Protection Board (EDPB) announced that it has established a “Cookie Banner” taskforce in order to coordinate the complaints and corresponding responses filed with several EU data protection authorities (DPA) by the non-governmental organization None of Your Business (NOYB) in relation to website cookie banners.

In May 2021 NOYB sent over 500 draft and formal complaints to companies residing in the EU regarding the use of their cookie banners. The complaints seem to focus on the absence of a “reject all” button on most of the websites as well as the way cookie banners use deceptive design in order to get data subjects to consent to the use of non-essential cookies. Another regular complaint is the difficulty for refusing cookies, as opposed to the simple way of consenting to them.

The EDPB stated that “this taskforce was established in accordance with Art. 70 (1) (u) GDPR and aims to promote cooperation, information sharing and best practices between the DPAs”. The taskforce is meant to exchange views on legal analysis and possible infringements, provide support to activities on the national levels and streamline communication.

noyb filed complaints against the cookie paywalls of seven major news websites in Austria and Germany

25. August 2021

Privacy Activist Max Schrems’ data protection organization noyb (an acronym for “none of your business”) announced on August 13th, 2021, they filed complaints against the cookie paywalls of seven major German and Austrian news websites. In the statement, they question whether consent can be “voluntarily” given if you have to pay to keep your data.

An increasing amount of websites asks their users to either agree to data being passed on to hundreds of tracking companies (which generates a few cents of revenue for the website) or take out a subscription (for up to € 80 per year). Can consent be considered “freely given” if the alternative is to pay 10, 20 or 100 times the market price of your data to keep it to yourself?

With these paywalls, the user must decide whether to agree to the use of his or her own data for advertising purposes or to enter into a paid subscription with the respective publisher. However, personal data may only be processed if there is a legal basis for doing so. Such a legal basis may arise, for example, from Article 6 (1) (a) of the GDPR, if the data subject has given his or her consent to this processing. Such consent must be “freely given”. According to Rectical 42, sentence 5, “consent is not regarded as freely given if the data subject has no genuine or free choice or is unable to refuse or withdraw consent without detriment.” noyb is of the opinion that the paywall solution lacks the necessary voluntariness for consent and thus also lacks a legal basis according to Art. 6 (1) a) DSGVO.

Art. 7 (4) GDPR demands, “when assessing whether consent is freely given, utmost account shall be taken of whether, inter alia, the performance of a contract, including the provision of a service, is conditional on consent to the processing of personal data that is not necessary for the performance of that contract.”

In contrast, in a decision on November 30th, 2018, the Austrian data protection authority did not see a violation of the GDPR in a paywall system, as the data subject receives a recognizable benefit, and expressed that the decision was thus voluntary after all.

Accordingly, users’ personal data could be considered a “means of payment” with which they pay for a paid subscription instead of a monetary benefit. Consent to data processing would thus be necessary for fulfillment, as it represents the quid pro quo the data subject, in other words, the purchase price. How the responsible data protection authorities will ultimately decide remains to be seen.

These complaints by noyb represent the organization’s second major campaign this month. On August 10, they have already filed 422 formal complaints with 10 European regulators based on inadequate cookie banners.

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.