Category Archives: consent

January 24, 2025 · 7:27 am

Cookies, compliance and individuated consent

[reposted from my LinkedIn account]

Much will be written about the recent High Court judgment on cookies, direct marketing and consent, in RTM v Bonne Terre & Anor, but treat it all (including, of course, this, with caution).

This was a damages claim by a person with a gambling disorder. The claim was, in terms, that the defendant’s tracking of his online activities, and associated serving of direct marketing, were unlawful, because they lacked his operative consent, and they led to damage because they caused him to gamble well beyond his means. The judgment was only on liability, and at the time of writing this post there has been no ruling on remedy, or quantum of damages.

The domestic courts are not regulators – they decide individual cases, and where a damages claim is made by an individual any judicial analysis is likely to be highly fact specific. That is certainly the case here, and paragraphs 179-181 are key:

such points of criticism as can be made of [the defendant’s] privacy policies and consenting mechanisms…are not made wholesale or in a vacuum. Nor are they concerned with any broader question about best practice at the time, nor with the wisdom of relying on this evidential base in general for the presence of the consents in turn relied on for the lawfulness of the processing undertaken. Such general matters are the proper domain of the regulators.

In this case, the defendant could not defeat a challenge that in the case of this claimant its policies and consenting mechanisms were insufficient:

If challenged by an individual data subject, a data controller has to be able to demonstrate the consenting it relies on in a particular case. And if that challenge is put in front of a court, a court must decide on the balance of probabilities, and within the full factual matrix placed before it, whether the data controller had a lawful consent basis for processing the data in question or not.

Does this mean that a controller has to get some sort of separate, individuated consent for every data subject? Of course not: but that does not mean that a controller whose policies and consenting mechanisms are adequate in the vast majority of cases is fully insulated from a specific challenge from someone who could not give operative consent:

In the overwhelming majority of cases – perhaps nearly always – a data controller providing careful consenting mechanisms and good quality, accessible, privacy information will not face a consent challenge. Such data controllers will have equipped almost all of their data subjects to make autonomous decisions about the consents they give and to take such control as they wish of their personal data…But all of that is consistent with an ineradicable minimum of cases where the best processes and the most robust evidential provisions do not, in fact, establish the necessary presence of autonomous decision-making, because there is specific evidence to the contrary.

This is, one feels, correct as a matter of law, but it is hardly a happy situation for those tasked with assessing legal risk.

And the judgment should (but of course won’t) silence those who promise, or announce, “full compliance” with data protection and electronic marketing law.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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Filed under adtech, consent, cookies, Data Protection, GDPR, judgments, marketing, PECR, Uncategorized

Tagged as data protection, GDPR, PECR

July 16, 2024 · 8:34 am

“Mom, we have discussed this”

A few years ago Gwyneth Paltrow’s daughter Apple took to social media to gently berate her mother for posting an image (not this one) which included her: “You may not post anything without my consent”. I’ve no idea whether Apple has other fine qualities, but I admired her approach here.

I was reminded of it by the – also admirable – approach by the Prime Minister and his wife to their two children’s privacy. Remarkably, it appears that their names and photographs have so far been kept from publication. It’s doubtful that will be able to continue forever (in any case, the children are at or coming to an age where they can take their own decisions) but I like the marked contrast with how many senior politicians co-opt their children into their campaigning platform.

One of the concerns of the legislator, when GDPR was being drafted, was children’s rights: recital 65 specifically addresses the situation of where a child has consented to publication of their data online, but later wants it removed.

Although Gwyneth Paltrow’s publishing of her child’s image would likely have been out of the material scope of GDPR under Article 2(2)(a) (and quite possibly out of its territorial scope) the thrust of recital 38 should apply generally: “Children merit specific protection with regard to their personal data, as they may be less aware of the risks, consequences and safeguards concerned and their rights in relation to the processing of personal data”.

[Image licensed under CC BY-NC 4.0, creator not stated. Image altered to obscure children’s faces]

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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Filed under children, consent, Data Protection, GDPR, Privacy, UK GDPR

Tagged as data protection, Human Rights, privacy

November 16, 2023 · 5:36 pm

I was stupid

I was stupid, I was naive: I thought that recent statements from senior people at the Information Commissioner’s Office (ICO) indicated a willingness to enforce against non-compliance in the use of cookies and cookie banners.

I was wrong. My recent complaint, published as an open letter to John Edwards, the Commissioner, not only took ten weeks to be allocated to a case worker, but, now, that case worker has told me, in terms, that they’re not interested:

we do not respond to cookie complaints individually…Our approach is to focus on sites that are doing nothing to raise awareness of cookies, or get their users’ consent, particularly those visited most in the UK. When consumers raise their complaints with us, we either conduct our own compliance check or write to the organisation…Our approach is to focus on sites that are doing nothing to raise awareness of cookies, or get their users’ consent, particularly those visited most in the UK.

This leaves two things hanging: 1) the site I complained about is one of the most visited in the UK; 2) the website in question arguably “raises awareness” of cookies, but only insofar as it confounds, frustrates and obstructs the user, in a manner which, in my submission, contravenes ePrivacy and Data Protection law, and 3) fails to get users’ consent (as it is defined in those laws).

MLex(£) have now written about this, and have secured a quote from the ICO, which is more than I got, really:

It is an ICO priority to influence changes to online tracking practices to create a more privacy-oriented internet. Where users want personalized adverts they should have the choice to receive them. But where websites don’t give people fair choices over how their data is used we will take action to safeguard their rights.

Try as I might, I can’t square that, and the ICO’s previous public statements about taking firm action, with an approach which fails in any real way to engage with people who take the time and effort to make complaints. But, as I say, I was stupid and naive to think it might have been different.

I’ve now complained, in turn, about the ICO’s handling of my complaint (and made an FOI request), in these terms:

1. I made a complaint under Article 77 UK GDPR. You have not investigated that at all, let alone “to the extent appropriate” as you are required to do under Article 57(1)(f).

2. My letter was addressed to John Edwards. Has he seen it?

3. You say, “When consumers raise their complaints with us, we either conduct our own compliance check or write to the organisation.” Which have you done here? Please disclose information either in respect of the compliance check you undertook, or of the correspondence you sent to Associated Newspapers Ltd.

4. Frankly, your response is discourteous. I went to some effort to assist the ICO in its stated intention to investigate poor compliance with PECR, but your response gives no indication that you’ve even read the substance of my complaint.

5. Your letter contains no apology or explanation for the extensive delay in handling it, which falls outside your own service standards.

In seriousness, I find this all really disheartening. The gulf between what the ICO says and what it does is sometimes huge, and not necessarily appreciated by those who don’t work in the field.

But I will get back in my stupid box.

+++

For completeness’ sake, the full response from the caseworker was:

Thank you for your correspondence in which you have complained about Associated Newspapers Ltd and its use of cookies.

Complaints regarding cookies can be submitted to us through the following link: Cookies | ICO

In this case, I have forwarded the information you have provided to the appropriate department. Although we do not respond to cookie complaints individually, we use the information you send us to help us identify, investigate and take action against organisations causing you complaint. To do this, we work alongside other organisations and website owners.

Our approach is to focus on sites that are doing nothing to raise awareness of cookies, or get their users’ consent, particularly those visited most in the UK. When consumers raise their complaints with us,
we either conduct our own compliance check or write to the organisation. Our website provides further information about the action we’re taking on cookies.

Yours sincerely

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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Filed under adtech, consent, cookies, Information Commissioner, PECR, UK GDPR

Tagged as data protection, GDPR, ICO, PECR

September 10, 2023 · 2:38 pm

An open complaint to the ICO about MailOnline cookies

***UPDATE at 8 November***

There is no update. Nothing from the ICO at all, other than, at four weeks – after chasing – a message saying it’s taking six to eight weeks to allocate cases.

It’s now more than eight weeks.

***END UPDATE***

Dear Mr Edwards

In June this year Stephen Bonner told MLex that websites which

don’t have “reject all” on your top level [cookie banner]…are breaking the law. ..There is no excuse for that. The ICO is paying attention in this area and will absolutely issue fines if we see organizations are not taking that seriously and taking steps.

Subsequently, your office said to law firm Mishcon de Reya

Having a ‘reject all’ button on a cookies banner that is just as prominent as an ‘accept all’ button helps people to more easily exercise their information rights. The ICO is closely monitoring how cookie banners are used in the UK and invites industry to review their cookies compliance now. If the ICO finds that cookies banners breach the law, it will seriously consider using the full range of its powers, including fines.

Then, on 9 August, in conjunction with the Competition and Markets Authority, your office stated

One clear example of often harmful design are cookie consent banners. A website’s cookie banner should make it as easy to reject non-essential cookies as it is to accept them. Users should be able to make an informed choice on whether they want to give consent for their personal information to be used, for example, to profile them for targeted advertising. The ICO will be assessing cookie banners of the most frequently used websites in the UK, and taking action where harmful design is affecting consumers.

In view of all of these statements, I wish to complain, under Article 77 UK GDPR, and simultaneously request, under regulation 32 of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (“PECR”), that you exercise your enforcement functions, in relation to the use of cookies and similar technology by Associated Newspapers Limited, or alternatively DMG Media (whichever is applicable) as controller of, and person responsible for confidentiality of communications on, the “MailOnline” website at https://www.dailymail.co.uk/home/index.html (the “Website”).

The Website presents a visitor using the Safari browser on an iPhone 11 Pro with a “cookie banner” (see attached screenshot) which does not offer visitors a “reject all” option.

Furthermore, the whole set-up is opaque. If one clicks “Cookie Settings” one is faced with an initially straightforward set of options (one of them set by default to accept cookies for personalised advertising on the basis of “legitimate interest”, which is clearly not compliant with regulation 6 of PECR). However, if one then clicks on the tab for “Vendors”, one is faced with a frankly farcically long list of such “vendors”, and options, many of them set by default to “legitimate interest”. I consider myself reasonably knowledgeable in this area, but it is far from clear what is actually going on, other than to say it plainly appears to be falling short of compliance with regulation 6, and, to the extent my personal data is being processed, the processing plainly appears to be in contravention of the UK GDPR, for want – at least – of fairness, lawful basis and transparency.

It is worth noting that much of MailOnline’s content is likely to be of interest to and accessed by children (particularly its sports and “celebrity news” content), even if the publisher does not actively target children. You state, in your guidance

if children are likely to access your service you will need to ensure that both the information you provide and the consent mechanism you use are appropriate for children.

But the complexity and opacity of the Website’s cookie use means that it is largely incomprehensible to adults, let alone children.

It is, obviously, not for me to specify how you undertake an investigation of my complaint, but you must, of course, by reference to Article 57(1)(f) UK GDPR, investigate to the “extent appropriate”. Given the clear messages your office has delivered about cookie banners and the like, and given the weight of evidence as to non-compliance, I would suggest an investigation to the extent appropriate must – at the very least – result in a clear finding as to legality, with reasons, and recommendations for the investigated party.

I cannot claim to be distressed by the infringements I allege, but I do claim to be irritated, and to have, cumulatively, been put to excess time and effort repeatedly trying to “opt out” of receiving cookies on the Website and understand what sort of processing is being undertaken, and what sort of confidentiality of communications exists on it.

Of course the Website here is not the only example of apparent non-compliance: poor practice is rife. Arguably, it is rife because of a prolonged unwillingness by your office and your predecessors to take firm action. However, if you would like me to refer to other examples, or require any further information, please don’t hesitate to ask.

Yours sincerely

Jon Baines

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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Tagged as consent, data protection, ICO, marketing, PECR, UK GDPR

October 3, 2022 · 8:21 pm

Certainly uncertain – data protection reform developments

In recent weeks the future of data protection law in the UK has been not just hard to predict, but also hard to keep up with.

Since Brexit, the UK has had its own version of the EU’s GDPR, called, obviously enough, the “UK GDPR“. Then, on 18 July, a Data Protection and Digital Information Bill was presented in Parliament – it proposed some significant (but possibly not hugely so) changes to the current regime, but it retained the UK GDPR. It was scheduled to have its second reading in the House of Commons on 5 September, but this was postponed “to allow Ministers to consider the legislation further”.

Following this, on 22 September, the Retained EU Law (Revocation and Reform) Bill was introduced. This appeared to propose the “sunsetting” (i.e. the repeal) of multiple data and information laws, including the UK GDPR, by the end of 2023.

The next development, on the first day of the Conservative Party conference, is the announcement by the Culture Secretary, Michelle Donelan, that

we will be replacing GDPR with our own business and consumer-friendly data protection system… Many…smaller organisations and businesses only in fact employ a few people. They don’t have the resources or money to negotiate the regulatory minefield that is GDPR. Yet right now, in the main, they’re forced to follow this one-size-fits-all approach.

She also suggested that businesses had suffered from an 8% reduction in profit from GDPR. It is not immediately clear where this figure comes from, although some have suggested that an Oxford Martin School paper is the source. This paper contains some remarkably complex equations. I have no competence in assessing, and no reason to doubt, the authors’ economic and statistical prowess, but I can say (with a nod to the ageless concept of “garbage in, garbage out”) that their understanding of data protection law is so flawed as to compromise the whole paper. They say, for instance

websites are prohibited from sharing user data with third parties, without the consent from each user

and

companies that target EU residents are required to encrypt and anonymise any personal data it [sic] stores

and (probably most bizarrely)

as users incur a cost when prompted to give consent to using their data, they might reduce online purchases, leading to lower sales

To be quite clear (as politicians are fond of saying): websites are not prohibited from sharing data without the consent from “users” (if they were, most ecommerce would grind to a halt, and the internet economy would collapse); companies subject to GDPR are not required to anonymise personal data they store (if they did, they would no longer be able to operate, leading to the collapse of the economy in general); and “users” do not have to consent to the use of their data, and I am still scratching my head at why even if they did they would incur a cost.

If the authors base their findings on the economic cost of GDPR on these bases, then there are some very big questions for them to answer from anyone reviewing their paper.

I may have the wrong paper: I actually really hope the government will back up its 8% figure with something more sensible.

But regardless of the economic thinking this paper, or underpinning the developments in the statutory regime, it is possible that all the developments cohere: that the Data Protection and Digital Information Bill, when it re-emerges, will have been amended so as to have the effect of removing references to “GDPR” or the “UK GDPR”, and that this will mean that, in substance, if not in name, the principles of the UK GDPR are assimilated into a new piece of domestic legislation.

But (given that the government’s focus is on it) business, just as nature, abhors a vacuum – many business owners (and indeed many data protection practitioners) must be hoping that there is a clear route forward so that the UK’s data protection regime can be considered, and applied, with at least a degree of certainty.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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Filed under adequacy, consent, Data Protection, Data Protection Act 2018, Data Protection Bill, GDPR, parliament, UK GDPR

Tagged as data protection, DPA

June 23, 2022 · 9:57 pm

Data protection nonsense on gov.uk

It feels like a while since I randomly picked on some wild online disinformation about data protection, but when you get an itch, you gotta scratch, and this page of government guidance for businesses – “Get your business ready to employ staff: step by step” – specifically on “Personal data an employer can keep about an employee” certainly got me itching. It starts off sensibly enough by saying that

Employers must keep their employees’ personal data safe, secure and up to date.

This is true (Article 5(1)(f) and part of 5(1)(c) UK GDPR). And the page goes on to list some information can be “kept” (for which I charitably read “processed”) without employees’ permission, such as: name, address, date of birth, sex, education and qualifications, work experience, National Insurance number, tax code, emergency contact details, employment history with the organisation, employment terms and conditions, any accidents connected with work, any training taken, any disciplinary action. All pretty inoffensive, although I’m not sure what it’s trying to achieve. But then…oh my. Then, it says

Employers need their employees’ permission to keep certain types of ’sensitive’ data

We could stop there really, and snigger cruelly, Consent (aka “permission”) as a condition for processing personal data is complicated and quite frankly to be avoided if possible. It comes laden with quite strict requirements. The Information Commissioner puts it quite well

Consent is appropriate if you can offer people real choice and control over how you use their data, and want to build their trust and engagement. But if you cannot offer a genuine choice, consent is not appropriate. If you would still process the personal data without consent, asking for consent is misleading and inherently unfair…employers and other organisations in a position of power over individuals should avoid relying on consent unless they are confident they can demonstrate it is freely given

And let’s consider the categories of personal data the government page thinks employers should get “permission” to “keep”: race and ethnicity, religion, political membership or opinions, trade union membership, genetics [sic], biometrics, , health and medical conditions, sexual history or orientation.

But how quickly would an employer’s wheels grind to a halt if it couldn’t process personal data on an employee’s health “without her permission”? It would be unable to refer her to occupational health if she didn’t “permit” it. It would be unable to keep a record of her sickness absence if she withdrew her consent (consent should be as easy to withdraw as it is to give (see Article 7(3)). During the COVID pandemic, it would have been unable to keep a record of whether she had tested positive or not, if she said she didn’t want a record kept.

It’s nonsense, of course. There’s a whole range of gateways, plus a whole Schedule of the Data Protection Act 2018), which provide conditions for processing special categories of data without having to get someone’s consent. They include pressing social imperatives, like compliance with public health law, and promotion of equality of treatment and safeguarding of children or other vulnerable people. The conditions don’t apply across the board, but the point is that employees’ permission – their consent – is rarely, if ever, required when there is another compelling reason for processing their data.

I don’t really understand what need, what gap, the government page is trying to fill, but the guidance is pretty calamitous. And it is only likely to lead to confusion for business owners and employers, and runs the risk of pitting themselves against each other – with disputes arising – amidst the confusion.

BAH!

Now, that felt better. Like I say, sometimes it’s good to scratch that itch.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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Filed under consent, Data Protection, Data Protection Act 2018, Let's Blame Data Protection, UK GDPR

Tagged as data protection, DPA, GDPR, ICO

June 17, 2022 · 11:17 am

Data reform – hot news or hot air?

I’ve written a piece for the Mishcon de Reya website on the some of the key proposals (for our client-base) in today’s data protection reform announcement.

Data protection law reform – major changes, but the (mishcon.com)

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Filed under adequacy, consent, cookies, Data Protection, Data Protection Act 2018, DPO, GDPR, Information Commissioner, international transfers, nuisance calls, PECR, UK GDPR

Tagged as data protection, DPA, GDPR, ICO, PECR

December 27, 2021 · 10:29 am

COVID booster messages and the law

“GET BOOSTED NOW Every adult needs a COVID-19 booster vaccine to protect against Omicron. Get your COVID-19 vaccine or booster. See NHS website for details”

On Boxing Day, this wording appears to have been sent as an SMS in effect to every mobile telephone number in the UK. The relevant government web page explains that the message is part of the national “Get Boosted Now” campaign to protect against the Omicron variant of COVID-19. The web page also thanks the Mobile Network Operators for “their assistance in helping deliver the vitally important Get Boosted Now message”.

It is inevitable that questions may get raised raised about the legality of the SMSs under data protection law. What is important to note is that, although – to the extent that the sending involved the processing of personal data – the GDPR may apply (or, rather, the UK GDPR) the relevant law is actually the Privacy and Electronic Communications (EC Directive) Regulations 2003 (“PECR”). Under the doctrine of lex specialis where two laws govern the same situation, the more specific rules will prevail over more general rules. Put another way, if the more specific PECR can justify the sending of the SMSs, then the sending will also be justified under the more general provisions of UK GDPR.

Regulation 16A of PECR (inserted by a 2015 amendment), provides that where a “relevant communications provider” (in this case a Mobile Network Operator) is notified by a government minister (or certain other persons, such as chief constables) that an “emergency” has occurred, is occurring or is about to occur, and that it is expedient to use an emergency alert service, then the usual restrictions on the processing of traffic and location data can be disregarded. In this instance, given the wording on the government website, one assumes that such a notification was indeed made by a government minister under regulation 16A. (These are different emergency alerts to those proposed to be able to be sent under the National Emergency Alert system from 2022 which will not directly involve the mobile network operators.)

“Emergency” is not defined in PECR, so presumably will take its definition here from section 1(1)(a) of the Civil Contingencies Act 2004 – “an event or situation which threatens serious damage to human welfare in a place in the United Kingdom”.

The effect of this is that, if the SMSs are legal under PECR, they will also be legal under Article 6(1)(c) and 6(1)(e) of the UK GDPR (on the grounds that processing is necessary for compliance with a legal obligation to which the controller is subject, and/or necessary for the performance of a task carried out in the public interest).

There is an interesting side note as to whether, even though the SMSs count as emergency alerts, they might also be seen as direct marketing messages under regulations 22 and 23 of PECR, thus requiring the content of the recipient before they could be sent. Under the current guidance from the Information Commissioner (ICO), one might argue that they would be. “Direct marketing” is defined in the Data Protection Act 2018 as “the communication (by whatever means) of advertising or marketing material which is directed to particular individuals” and the ICO defines it further by saying that this “covers any advertising or marketing material, not just commercial marketing. All promotional material falls within this definition, including material promoting the aims of not-for-profit organisations”. Following that line of thought, it is possible that the Omicron SMSs were both emergency alerts and direct marketing messages. This would be an odd state of affairs (and one doubts very much that a judge – or the ICO, if challenged on this – would actually agree with its own guidance and say that these SMSs were indeed direct marketing messages). The ICO is in the process of updating its direct marketing guidance, and might be well advised to consider the issue of emergency alerts (which aren’t covered in the current consultation document).

[Edited to add: I don’t think what I say above necessarily covers all the legal issues, and no doubt there are aspects of this that could have been done better, but I doubt very much there is any substantive legal challenge which can be made.]

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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Filed under communications data, consent, Data Protection, Data Protection Act 2018, GDPR, Information Commissioner, PECR, UK GDPR

Tagged as data protection, GDPR, ICO, PECR

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