HL Chronicle of Data Protection : Privacy Lawyers & Attorneys : Hogan Lovells Law Firm : Data Security, E-Commerce & Technology

What Went Wrong

Much of the opinion is dedicated to describing what elements of self-regulatory proposal, in the opinion of the Working Party, violate EU law, particularly in the areas of notice, choice, and data retention. Though some of these criticisms are not new, the Working Party crystallized its viewpoints on the issue, including the following.

(1)    An icon accompanying targeted ads that is linked to the information website www.youronlinechoices.eu does not provide adequate notice. 

In its June 2010 OBA opinion, the Working Party cited the use of contextual icons attached to ads that can be clicked to learn about cookies and express preferences as an example “which the Working Party finds both positive and necessary.” The current opinion, however, made clear that icons are not sufficient to provide notice because consumers today don’t know what they mean. That said, the Working Party recognized the usefulness of icons as a means to complement other forms of notice, but only after the user has provided consent to process data for OBA purposes (or if used to direct the user to a more fulsome mechanism to obtain consent). In that context, the Working Party suggested that the word “advertising” alongside the icon is not sufficient even to inform users that the ad uses cookies for OBA purposes, and stated “at minimum” the language should include the phrase “personalized advertising.”

The Working Party also took the opportunity to reiterate its position from its 2010 OBA opinion that at minimum, notice for OBA should include:

• what entity is responsible for serving the cookie and collecting the related information;
• that the cookie will be used to create profiles;
• what type of information will be collected to build such profiles;
• the fact that the profiles will be used to deliver targeted advertising; and
• the fact that the cookie will enable the user’s identification across multiple websites.

(2)    The use of an opt-out cookie is not sufficient to provide consent.

The industry proposal would permit consumers who visit the www.youronlinechoices.eu website to download an opt-out cookie to record their refusal to participate in OBA. In addition to criticizing the proposal for not following an opt-in approach, the Working Party noted other aspects of the opt-out system that it believed violated EU law, including that:

• “it has been demonstrated that” ad networks continue to collect information from users’ computers even after the opt-out cookie is downloaded;
• the approach does not offer the possibility of managing and deleting previously installed tracking cookies; and
• the www.youronlinechoices.eu website itself contains links to a number of JavaScript functions that collect personal data (such as IP addresses) without consent.

(3)    The notice to users lacks necessary provisions on the scope of data collection and data retention.

The Working Party took the position that notice to users about OBA must disclose how much data is collected by the different advertising networks, how long it is stored, and for what purposes it is processed. At minimum, the notice should address the period during which consent can be considered valid, and after which data must then be deleted.

What Went Right

The Working Party did commend the industry proposal in a couple areas. It noted the proposal’s “interesting approaches” on how to make consent mechanisms more effective, such as industry’s commitment to engaging in educational initiatives to inform individuals and businesses about OBA. The opinion also, unsurprisingly, welcomed the proposal’s principle that a user’s explicit consent is required prior to creating or targeting OBA segments that make use of sensitive data (i.e., data relating to racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, health, or sex life).

Suggestions for Consent

One of the most frequent complaints about the Working Party’s position on OBA has been that by requiring opt-in consent for targeted advertisements, users will be subjected to countless pop-up requests whenever a website wishes to place a cookie. The Working Party opinion attempted to dispel this notion by proposing a number of alternatives to or ways to mitigate the annoyance of pop-ups, including:

• An opt-in cookie approach: Under such an approach, the first time a user visits a website served by an ad network, the ad network can display a message on the page prompting the user for consent to participate in OBA (the Working Party suggests that this message can be where the ad normally would appear). If the user then opts in, he or she can receive targeted advertising on all websites associated with that ad network without having to be prompted again for consent. If the user declines, the ad network should place an opt-out cookie.
• A static information banner on the top of a website: Such a banner, like the one present on the website of the UK Information Commissioner Office, would request the user’s consent to set cookies, with a hyperlink to a privacy policy containing a full notice.
• A splash screen upon entering a website: Users would be presented with the option to consent before entering the website, such as when breweries require users to confirm they are of age before they enter the site.
• Click-to-consent: The Working Party singled out the method used by the German e-zine Heise that defaults a button associated with cookies to light grey. Only once the user clicks on and “activates” the button will the cookie be placed and the third party be able to send and receive user data. This process, however, would need to be transparent to users.
• Browser plug-ins: Though the Working party repeatedly has said that browser settings permitting users to opt out of cookies are not sufficient to provide informed consent, it would support default opt-out browser settings accompanied by ad network plug-ins and extensions through which users would indicate their wish to opt in to online tracking. Interestingly, this is the polar opposite of the opt-out browser plug-ins available today, which assume tracking as the default and permit users to opt out of OBA.
• Where a website uses several ad providers, group together all necessary consent requests in one presentation: This would the need for users to confront multiple, serial pop-ups. As an example, the Working Party cited the interface on www.youronlinechoices.eu, which provides a single interface to permit users to opt out of multiple ad networks.

The Working Party also noted that EU law does not require informed consent for certain cookies necessary to facilitate the user’s requested services, such as session cookies, shopping basket cookies, and security cookies (though notice is required before placing these cookies). Therefore, no additional consent mechanisms are required to place these cookies.

The first legal instrument is a draft General Data Protection Regulation, which sets forth a general framework for EU data protection and is intended to replace the 16-year-old Data Protection Directive with a region-wide regulation.  The fact that the instrument is fashioned as a regulation is significant. Under EU law, regulations have binding legal force as soon as they are passed, whereas directives must be enacted into law by each individual EU Member State.   A frequent criticism of the Data Protection Directive was that the EU Member States enacted and applied it differently, leading to uneven implementation and forum shopping. By changing the format to a regulation, there is less room for variation between the Member States, which in theory should lead to greater certainty for EU citizens and organizations. 

The draft Regulation contains a number of significant changes to the Data Protection Directive, particularly in the areas of (1) jurisdiction, governance, and cross-border transfers, (2) data subject rights, (3) data controller/processor obligations, and (4) remedies, liability, and sanctions. These changes include:

Jurisdiction / Governance / Cross-Border Transfers

• The declaration that EU data protection law applies to data controllers outside of the EU when processing activities are “directed to” or “serve to monitor the behaviour of” EU data subjects, including for commercial or professional services such as offering products or services. Factors to be considered when determining whether processing activities are “directed to” EU data subjects include (a) the international nature of the activities; (b) the use of a language or a currency other than the language or currency generally used in the country in which the controller is established; and (c) the use of a top-level domain (e.g., “.co.uk” or “.com”) other than that of the country in which the controller is established.
• The use of Binding Corporate Rules (BCRs) to legitimize intra-company cross-border data transfers to countries without data protection laws deemed “adequate” by the EC would be streamlined and extended, including the use of BCRs to cover data processors and groups of companies, and with an eye to covering cloud computing. Unlike the current process, in which BCRs must be reviewed by at least three DPAs (one “lead” and two “reviewers”) and some Member States require additional authorization, BCRs would be validated only by one lead DPA. Once a BCR is validated by the lead DPA, it would be valid for the whole EU without needing authorization from any other Member State.
• Each data controller or processor only will be subject to the enforcement jurisdiction of the one data protection authority (DPA) of the Member State in which the organization has its “main establishment,” which is where the organization’s “central administration” in the EU is located. This usually will be where the organization makes its management decisions regarding the purposes, conditions, and means of processing personal data.
• DPAs would be obligated to carry out investigations and inspections upon request from other DPAs and to mutually recognize each others’ decisions. Rules are provided for joint operations and operations by one Member State within another Member State’s territory.
• To ensure consistent application of the directive, the Article 29 Working Party would be updated to an independent “European Data Protection Board” that, in addition to its current duties, would have the authority to issue official opinions regarding the interpretation of the Regulation. These opinions would be subject to the review of the EC.

Data Subject Rights

• To process personal data for any commercial direct marketing purpose, organizations would need to obtain the explicit, opt-in consent of the data subject.
• Where consent is used to legitimize data processing (even outside the marketing context), it would need to be explicit, opt-in consent. Moreover, consent would not be valid where there is a “significant imbalance” in power between the data subject and data controller. The prime example of this is in the employment relationship. These rules essentially would be a codification of parts of this past summer’s Article 29 Working Party opinion on consent.
• The creation of a “right to be forgotten” that would permit data subjects to request that data controllers erase all personal data relating to them and abstain from further disseminating that information, unless there are legitimate grounds to retain the data. In a particularly controversial portion of this proposal, data controllers would be required to “ensure the erasure of any public Internet link to, copy of, or replication of the personal data relating to the data subject contained in any publicly available communication service which allows or facilitates the search of or access to this personal data.” This proposal is in line with recent statements made by EU authorities regarding the retention of data on social networking sites. Some have doubted the ability to “ensure” such complete erasure, especially when much of the content on the public Internet is shared and backed up.
• The creation of a right to portability, through which data subjects would be able to request a copy of their stored data and move it from one service provider to another, without hindrance.

Data Controller/Processor Obligations

• Data controllers would be required to notify data breaches to both the individuals concerned and data protection authorities within 24 hours of the breach being discovered (although notification to individuals would be required only when the breach "is likely to adversely affect the protection of the personal data or privacy" of the individual, a limitation not present in obligation to notify the data protection authority).  Currently, EU law only requires Member States to enact laws creating a breach notification obligation for telecommunications operators (which some Member States have yet to enact), although some Member States (such as Austria and Germany) do have security breach notification requirements for data controllers other than telecom operators.
• Data controllers would be required to minimize the volume of personal data that they collect and process, and to set default settings so that user personal data will not be made public by default.
• Data controllers and data processors would be required to appoint a data protection officer if (a) they employ over 250 employees or (b) their “core activities” require “regular and systematic” monitoring of data subjects.
• Prior to processing personal data in a way that is “likely to present specific risks to the rights and freedoms of data subjects by virtue of their nature, their scope or their purposes,” organizations would be required to conduct a data protection impact assessment. The draft Regulation does not define exactly what processing would fall into this definition, though it does list a few examples that “likely” would, including (a) running automated models to analyze or predict a person’s performance at work, creditworthiness, economic situation, location, health, personal preferences, reliability, or behavior, where the result will affect the data subject; (b) the processing of certain types of sensitive data; (c) conducting video surveillance; and (d) utilizing large-scale filing systems containing genetic, biometric, or children’s data.
• The elimination of the obligation of organizations to generally notify data protection authorities of any automatic processing of personal data, replacing it with an obligation to maintain documentation on processing operations under their responsibility.

Remedies, Liability, and Sanctions

• Data subjects, and qualified public interest groups on behalf of data subjects or themselves, would have the right to lodge complaints either with DPAs or courts for violations of the Regulation. Currently, some Member States’ DPAs do not have such authority.
• The creation of three levels of fines for intentional or negligent violations of the Regulation, with the maximum penalty for certain offenses being 5% of an organization’s annual worldwide turnover.

Besides the Regulation, the second legal instrument released is a draft Police and Criminal Justice Data Protection Directive. This directive sets forth rules relating to cross-border transfer and other processing of personal data for law enforcement purposes, with an eye toward facilitating the sharing of this information between law enforcement agencies while still complying with data protection law. Though this Directive is directed toward law enforcement and not the private sector, it does apply where personal data may be required and used by law enforcement authorities (e.g., data related to bank transfers, data collected when buying an airline ticket, traffic and telecommunications data), so it will have at least a tangential effect on the private sector.

Notably, these instruments are just preliminary drafts, and may differ when the EC releases the official drafts, which is still slated to happen in January. Even then, the drafts still will need to be debated and passed before coming into law, a process which is likely to at least a couple years. Therefore, there is still time for these legal instruments to be significantly modified before they are ultimately adopted.

Sanctions: The criminal sanction for failing to notify data breaches is up to 5 years in prison and three hundred thousand euro (300,000 €) fine. The sanction is in line with other criminal sanctions for failure to comply with French data protection legislation. With regards to the fine, it should be noted that the maximum sanction for companies is multiplied by five (5), thus bringing the maximum sanction to up to one and a half million euro (1,500,000 €).  

Security Audits. The Ordonnance empowers the French government to order security audits of any operator's networks, systems and services. The operator must bear the cost of the audit, and must give the government approved auditors access to all relevant equipment and to the operator's "documents relating to its security policy." A future decree will be adopted to provide details on these requirements. However, one takeaway from this new provision is that operators should probably conduct preventive data and network security audits and make sure their security policies are up to date and applied.

Cookies. Implementing the revised ePrivacy Directive, the Ordonnance provides that users of electronic communications services must not only receive clear information about the use of cookies and tools available to block them (this was already a requirement under French law), but also that users give their consent before the cookies or similar measures are implemented. The Ordonnance states that "the consent can result from appropriate parameters in [the user's or subscriber's] connection system or any other system under [the user's or subscriber's] control." This suggests that browser settings might constitute sufficient prior consent, although the recent Article 29 Working Party opinion on consent (Opinion 15/2011) appears to take a different view.

As before, an exception exists for cookies that are designed to facilitate the communication, or that are strictly necessary for the provision of the Internet application or service requested by the user.

Another important lesson that emerges from the consent guidelines is that consent must be sufficiently granular to show that the individual specifically gave his or her consent to each type of processing that is envisaged by the data controller. According to their Article 29 Working Party, a general consent to any and all transfers to unspecified third parties would not be sufficiently specific to constitute valid consent. The Article 29 Working Party pointed to the 2010 opinion of the Advocate General in a case involving agricultural funds in Europe, in which the Advocate General held that a broad consent in the fund’s terms and conditions was not sufficiently precise to conclude that the beneficiary of the fund had given unambiguous consent to the publication of his or her name. 

Another conclusion that we can draw from the guidelines is that silence or the failure to act can never be considered valid consent. The Article 29 Working Party heavily relies on the notion of "indication" of the data subject's wishes, which is featured in the definition of consent laid out by the 1995 Directive, to conclude that positive action would be required to demonstrate consent.  Consequently the sending of an e-mail to a consumer informing him or her of changes to the privacy policy or stating that the processing of his/her data will be undertaken unless he/she objects within a defined period of time would not be sufficient to constitute the consumer’s consent to the new policy or the contemplated processing. The consent would have to be evidenced by an affirmative clicking of a box or any other relevant positive act. Similarly, the Article 29 Working Party states that browser settings in themselves cannot constitute valid consent. This raises questions in the context of the new European rules requiring prior consent to cookies. Some Member States are studying the extent to which browser settings can be used as a manifestation of prior consent to cookies.

The guidelines helpfully remind us also that consent can, in some cases, be implicit. For example, if an online merchant asks a consumer to provide personal information and the consumer provides it, the consumer will have implicitly consented to the merchant’s use of that information in order to process orders and deliver the goods and services ordered by the consumer. There is no need for a separate consent because the purpose for which the consumer provided the information is obviously to permit the merchant to provide the online goods and services and such processing is therefore reasonably expected by the consumer. On the other hand, if the merchant wishes to use the data for another purpose, such as selling behavioural advertising, a separate specific consent would be needed. 

From a general and practical standpoint, implementing the rules as foreseen by the Article 29 Working Party will, in many instances, require companies to initiate a complete review of the conditions under which they use consent to evaluate whether other grounds are available to legitimize their processes and whether consents they have obtained present a sufficient level of granularity to provide accurate and satisfactory information for data subjects. For online service providers, European requirements for consent will lead necessarily to multiple pop-up windows and separate check-the-box consent options. The more granular and affirmative each consent is, the more likely it is to be valid. On the other hand, grouping all data protection consents together in the terms of use is likely to prove risky in light of the Article 29 Working Party guidelines and applicable case law.

The court held that user consent adequately covered the monitoring activities, but that the consent may not have been sufficiently broad to cover alleged modifications made to users' computer settings by the cookies sent by the NebuAd appliance.  The court therefore allowed these issues to go to trial, while dismissing most of the other claims against the network operator.

The NebuAd case focuses the debate on whether valid consent was given or not.  In France there are debates about whether ISPs may in some circumstances block certain kinds of content.  Staunch net neutrality advocates argue that operators should under no circumstances be allowed to monitor, slow or block certain content, unless they are ordered to do so by a court.  But in fact there are other circumstances where operators can legitimately monitor traffic: reasonable network management of course, but also cases where the user has unambiguously consented.  If adequate consent is given, operators could install tools to limit access to certain content, or even propose discounted Internet subscriptions for users who accept to be monitored for targeted advertising purposes. In Europe, this kind of regime already exists for location based services provided by mobile operators: operators are alllowed to use precise location information generated by their network to provided value-added services to subscribers, as long as the subscribers consent in advance and have an easy way to opt-out. 

In the context of the current focus on improvements to privacy protection, adequate safeguards need to be put in place to ensure that the tools installed by operators are not misused, and do not collect or store any more data than is necessary.  Data minimisation and anonymisation are key, and can be achieved through privacy by design. 

The NebuAd case confirms that there need not be any distinction between a network operator and a service provider at the edge of the network providing targeting advertising. In both cases, there exist potential privacy risks for the user. The key issue is what kind of consent is sufficient for these potentially invasive monitoring tools to be used, and what kind of privacy protections should be integrated into the technology through privacy by design.