Last week, CNIL, the French data protection agency, handed Google the largest ever GDPR penalty (€50m) for its lack of transparency in how it collected and used personal data for personalised advertising.
This is of course a landmark case in the implementation of GDPR. Importantly, it also shows that despite fears pre-May 2018, European DPAs will not be perturbed by the legal resources that some of the biggest companies in the world have at their disposal – despite the entirely predictable appeal that Google lodged almost immediately.
But the case also raised two interesting points for privacy professionals: a debate over bias in which cases are pursued by DPAs, and how the “one stop shop mechanism” is applied in practice.
Within many of the CNIL-Google media reports, there were accusations that CNIL showed nationalist bias in punishing US-based Google, while not displaying the same zeal in pursuing French or European organisations for similar offences. Others added that this case was a classic example of many European DPAs’ “anti-big” bias – a tendency to go “headline hunting” and target the biggest brands in order to demonstrate a dedication to protecting data subjects.
But these accusations miss the point.
If there is a conscious “anti-big” bias in data privacy (which would be no surprise given wider geo-political trends), then that bias sits predominantly with the data subjects, not the data protection authorities.
A DPA will rarely begin a case of its own volition. Faced with limited proactive investigative resource, DPAs are alerted to potential foul play by receiving complaints from data subjects, and on examination of their merits and the seriousness of the offence(s), may initiate proceedings.
Perhaps unsurprisingly, since GDPR’s go live, almost every European DPA has reported large numbers of data subjects objecting to the ways in which the likes of Google and Facebook have collected and used their data. These high numbers of complaints will be an unavoidable effect of being some of the largest companies in the world – as any missteps will impact more people – but also a function of the underlying but growing “anti-big” popular sentiment and mistrust of large enterprise.
Clearly any DPA in such a situation will feel compelled to prioritise the cases attracting the greatest outcry – especially in the face of inevitable media attention, and regardless of the data subjects’ possible bias or of the nationality of the alleged offending company.
Secondly, this particular case was originally brought by two lobbyists: La Quadrature du Net (LQDN), who acted on behalf of more than 10,000 data subjects, and NOYB, a very powerful privacy pressure group that is headed by no less than Max Schrems, who made his name in privacy by bringing a case against Facebook that led to the invalidation of Safe Harbour. No DPA could realistically deprioritise a genuine case brought to them by these two bodies, especially when supported by hundreds of additional individual data subjects.
So to answer the question above, yes there could well be a trend in how DPAs pursue some cases over others. But the bias actually sits mainly with the data subjects – and those bodies that represent them en masse – and their apparent own eagerness to retaliate against “big”.
This is a question of which DPA leads actions brought against companies. The “one stop shop mechanism” within the GDPR dictates that where an organization has entities in multiple EU countries, the DPA of the country where the organization’s “main presence” is located shall lead the proceedings.
The role of “leading proceedings” means being the sole authority that the organization needs to deal with and respond to, while also requiring the chosen DPA to collaborate with the DPAs of other affected countries before making any decisions.
There was a fear that this might lead to “DPA shopping”, as organizations who suspected actions may be brought against them could theoretically move their main presence to a country whose DPA is more lenient or less proactive.
However, this case has shown that this – fortunately – will not work. It was deemed that despite any theoretical role in Google’s organizational structure, Google’s EU HQ in Ireland could not be considered the European data controller as it did not have decision-making powers over how data is processed. Being a controller is a prerequisite for the “one stop shop” rule to apply, and in the absence of a central European controller anywhere else, all of Google’s European entities were deemed to be data processors, making all European DPAs, including CNIL, equally free to bring actions.
This goes back to the main theme of our blog a couple of weeks ago about the Uber decisions, and how DPAs will determine organizational liabilities based on actions, not titles – a theme we will no doubt see again and again and that companies need to be aware of.
But despite Google and Uber both being fined in the last couple of months, don’t fall into the trap of believing that DPAs are only interested in targeting the largest companies. We are seeing plenty of actions being brought against smaller companies whose actions have affected large numbers of data subjects.
In fact, this mistake is one of the falsehoods of GDPR that we uncovered in our popular download, the 10 Myths and Fairy Tales of GDPR.