On 21 January 2019, the French data protection authority, the CNIL, imposed an eye-watering €50m penalty on Google under the GDPR. Side-stepping the €20m maximum the CNIL issued a turnover related fine, highlighting that the maximum possible fine under the GDPR is €20m or 4% of global annual turnover, whichever is the greater.
The investigation was initiated as a result of complaints made within days of the GDPR coming into effect in May 2018. The complaints were from the associations None Of Your Business (“NOYB”) and La Quadrature du Net (“LQDN”), mandated by 10,000 people to refer the matter to the CNIL.
The case concerns personalised ads on smart phone devices using the Android operating system with a Google account. The regulator found two types of breaches of the GDPR. First, a lack of transparency, and second a lack of valid consent regarding the targeted ads.
The requirement for transparency goes to the heart of the GDPR and applies to all processing.
CNIL looked at the information and process a user goes through when setting up the account. They found that the information provided by Google is not easily accessible. Essential information, such as the purposes of the processing, data storage periods and the categories of personal data used for the ads personalization, are disseminated across several documents. Specifically, information is not clear enough so that a user can understand that the legal basis of processing for the ads personalization is consent, and not the legitimate interest of Google.
Meanwhile, the processing operations are “massive and intrusive” because of the number of services offered (e.g. Google search, You tube, Google home, Google maps, Playstore, Google pictures…), and the amount and the nature of the data processed and combined.
Lack of a legal basis
The GDPR also requires a legal basis for processing. “Consent” is one of the possible legal basis and the GDPR significantly raised the bar for obtaining a valid consent.
The CNIL decided that the user’s consent is not validly obtained for two reasons. First, the consent is not sufficiently informed – a lack of transparency is fatal to obtaining a valid consent.. Second, the collected consent is neither “specific” nor “unambiguous”. The user gives his or her consent for all processing operations together, whereas the GDPR requires that the consent is “specific” only if it is given distinctly for each purpose, i.e. a separate consent for each separate processing operation.
Google has said it will appeal the decision.
The case highlights the imperative of, as well as the difficulties in, obtaining a valid consent especially in the complex and mystifying world of targeted advertising where presentation of transparent intelligible information to a user in order to inform consent is challenging.
Nigel Miller is a partner in the commerce & technology team at City law firm Fox Williams LLP and can be contacted at firstname.lastname@example.org