Eight months after the introduction of GDPR decisions are starting to emerge from the first complaints. The breadth and depth of the complaints is starting to look revolutionary for the digital economy.
For years, the internet effectively did whatever it wanted. Bureaucrats attempted to regulate the industry, though mostly built ineffective rules on shaky foundations. Regulators were seemingly unable to out-manoeuvre Silicon Valley’s slippery legal beagles, experts at discovering grey areas, but then Europe’s General Data Protection Regulation (GDPR) was created.
The months leading up to the May 25 ‘doomsday’ were a nightmare for many companies around the world, such is the weight of potential fines. As soon as the ink was dry in the rulebook, the complaints started to get filed. Eight months later, the first decisions are emerging, and the threat of disruption is starting to look big, broad and beastly.
Over the last few weeks, French regulator CNIL has fined Google for not being explicit enough when collecting consent, a decision the search giant is challenging. Privacy Advocate Max Schrems’ non-profit, None of Your Business (NYOB) is taking eight internet companies to court in Austria for ‘Right to Access’ violations. NYOB is also challenging Google’s Android as well as Facebook’s Instagram and WhatsApp on the grounds of forced consent. Privacy International is also pointing the GDPR finger at Facebook. Private browser Brave and the Open Rights Group are tackling Google and marketing agency IAB on ‘Real-time bidding’ for hyper-personalised advertising.
Looking at the final case, this is an interesting one as it is not a practise which has been widely connected with GDPR. Real-time bidding platforms allow companies to collect in-depth and wide-ranging troves of information on individuals. This behavioural data is then ‘is broadcast to tens or hundreds of companies’ in order to attract potential advertisers’ bids. Brave and the Open Rights Group believe this is a violation of GDPR as the ‘broadcast’ fails to protect these intimate data against unauthorized access.
Article 5, paragraph one of GDPR states data should be ‘processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss’. As there is no control over the data once it has been broadcast, Brave and the Open Rights Group state this is a violation of privacy rights.
The marketing and advertising industry certainly would have been aware of the threat to this segment, however it is not the type of data application which has hit the headlines in a major fashion broadly. This is the current risk the internet industry is facing; privacy advocates are getting creative with how they are applying GDPR, widening the net of accusation, ensuring lawyers are fighting the regulation on multiple fronts.
In the first couple of months, you can almost guarantee every court decision will be challenged by at least one of the internet giants. This is the gravity of the situation; fundamental and revolutionary changes could be on the way is the privacy win. The internet will change due to the interpretation of GDPR. The threat of red-tape choking off the steady flow of billions is look very real.
Worryingly for the internet giants is the emergence of class-action suits as well. Although this type of proceeding is quite common across the pond, such cases are rare occurrences in Europe. Across the legal community there have been mutterings, suggesting the regulation could open the door on the bloc. Perhaps it would not evolve to the same scale as class-action suits in the US, but the threat of such a trend should be very worrying for those who are currently ducking and diving swipes from the GDPR stick.
Today is Data Privacy Day, so perhaps it is fate that it appears the data privacy campaigners have the upper hand over Silicon Valley right now. The first decision from the courts has gone against the internet industry, the implications could have a significant knock-on effect to Terms of Service agreements, and you can guarantee Google will throw everything it can against the CNIL and its €50 million fine.
The money means nothing to the ‘Do no Eviler’, but the potential disruption to the internet economy could be seismic. We all knew GDPR could be very damaging to the data-sharing industry, but now it is starting to get very real.