Consent

On 6 March 2024, the ICO issued a call for views on so-called “Consent or pay” models, where a user of a service has the option to consent to processing of their data for one or more purposes (typically targeted advertising), or pay a (higher) fee to access the service without their data being processed for those purposes. This is sometimes referred to as “pay or okay”.

The ICO has provided an “initial view” of these models, stating that UK data protection law does not outright prohibit them. It also sets out factors to consider when implementing these models and welcomes the views of publishers, advertisers, intermediaries, civil society, academia and other interested stakeholders. The consultation is open until 17 April 2024.Continue Reading UK ICO Launches a Consultation on “Consent or Pay” Business Models

On November 16, 2023, the European Data Protection Board (“EDPB”) issued draft Guidelines 2/2023 on Technical Scope of Art. 5(3) of ePrivacy Directive (“Guidelines”).  Article 5(3) is the provision that requires consent before storing or accessing information on an end user’s device. Over the years it has become known as the “cookie rule,” but it is technology-agnostic.  The Guidelines expand upon guidance issued by the Article 29 Working Group in 2014, and are intended to clarify when the requirement applies to new tracking methods.  The Guidelines are open to public consultation through December 28, 2023. 

The Guidelines identify and explain the four key elements that trigger the obligation to obtain opt-in consent under Article 5(3) of the ePrivacy Directive (“ePD”).  The Guidelines set forth an extremely broad interpretation of what constitutes “storing” and “accessing” information on a user’s device that arguably goes beyond the plain meaning of these terms.  This interpretation is likely to be relevant for companies considering how to approach the discontinuation of third-party cookies on many browsers.    Continue Reading EDPB Issues Draft Guidelines on Technical Scope of ePrivacy Directive Rules for Storage and Access

According to several news reports in the past month of August (for example, Heise.de), the German Government is working on a regulation that will set out the requirements for so-called “consent management services”, which are services for collecting and storing the consent of website users to the placement of cookies and similar technologies.  These services would serve as an alternative to cookie banners.  Among others, they may obtain consent for several websites at once.  More specifically, dedicated software applications could enable users to replicate the consent provided on one website to other websites, therefore generalizing and sorting their consent by category of devices or websites.  Users would be asked to review their consents every six months.Continue Reading The German Government is Drafting a Regulation on Cookie Consent Management Services

On 31 May 2022, the Italian Parliament approved Law 62/2022, also known as the Sunshine Act, which entered into force on 26 June 2022. The new rules will become fully operational once the Ministry of Health sets up the public database where companies will have to disclose their data.  In…

Continue Reading The New Italian Sunshine Act Introduces Mandatory Individual Disclosure With Implied Consent Mechanism For Transfers Of Value

On May 19, 2021, the Italian Supervisory Authority (“Garante”) fined a physician €5,000 for publishing a patient’s medical records without obtaining that patient’s specific consent to do so.  As background, the physician downloaded medical records about a patient she treated at a local hospital from the hospital’s online archive system, including images taken during surgery.  The physician used these records for a presentation at a medical conference, and also included them as documentation supporting a scientific research paper she submitted for a competition hosted by a surgeons’ association.  The physician’s paper was ultimately selected as the winner of that competition, resulting in the publication of her work on the association’s website.
Continue Reading Italian Supervisory Authority Fines Physician for Secondary Use of Patient Data Without Specific Consent

On May 25, 2020, the second anniversary of the GDPR, the Belgian Supervisory Authority (“SA”) released an overview of its first full year of activity (available in French here, and in Dutch here).  To be clear, this was not a delay in reporting, but rather shows that the Belgian legislature was late in creating its oversight and enforcement authority for data protection.

According to the activity overview, the SA has received over 900 security breach notifications and around 350 complaints.  It has performed over 100 inspections and imposed 59 sanctions, 9 of which resulted in fines for a total of €189,000.  In fact, the SA has imposed the bulk of these fine amounts only in the last two months.Continue Reading Belgian Supervisory Authority’s GDPR Track Record So Far

On March 4, 2020, Advocate General Szpunar (“AG”) delivered his opinion in the case C-61/19 Orange România SA v Autoritatea Naţională de Supraveghere a Prelucrării Datelor cu Caracter Personal (ANSPDCP).  The AG concluded that a printed telecommunication contract stating that customers consent to the processing of a copy of their…
Continue Reading Advocate General delivers opinion on GDPR consent

Germany recently enacted a law that enables state health insurance schemes to reimburse costs related to the use of digital health applications (“health apps”), but the law requires the Federal Ministry of Health to first develop the reimbursement process for such apps.  Accordingly, on January 15, 2020, the German government…
Continue Reading Germany Publishes Draft Regulation on the Reimbursement of Digital Health Applications

On December 17, 2019, the Belgian Supervisory Authority (“SA”) imposed a fine of € 15,000 on an SME operating a legal information website that welcomes approximately 35,000 unique visitors a month.  Interestingly, in the apparent absence of any actual complaints submitted to the SA, it carried out this enforcement action…
Continue Reading Belgian Supervisory Authority Imposes Cookie Fine