On 21 January 2019, the French Data Protection Authority (Commission Nationale Informatique et Liberté – "CNIL") imposed a fine of € 50 million on Google for infringing the General Data Protection Regulation 2016/679 (the "GDPR"). As the operator of the Android system, Google was found to have breached various requirements of the GDPR, including providing insufficient information to users and failing to obtain valid consent for the personal advertisements targeting users. CNIL asserted its territorial jurisdiction over Google, arguing that Google could not benefit from the one-stop-shop principle under the GDPR. Given its possible value as a precedent for the enforcement of data protection rules across Europe, the CNIL decision also has its place in a newsletter covering Belgian legal developments.
The CNIL decision follows complaints that had been filed by consumer rights organisations None of Your Business ("NOYB") and La Quadrature du Net ("LQDN") on 25 and 28 May 2018, just after the GDPR had become applicable throughout the EU.
No One-Stop-Shop for Google
Under the GDPR, enforcement of data protection law is left to the national supervisory authorities of the Member States. To avoid multinational organisations established in various EU Member States having to answer to various national supervisory authorities, Article 56 of the GDPR creates a 'one-stop-shop', pursuant to which the supervisory authority of the main establishment acts as "lead supervisory authority" for cross-border processing.
Google has various establishments in Europe, including a French affiliate, Google France SARL. However, Google's European headquarters are located in Ireland, where Google Ireland Limited is established. Google Ireland Limited is the contracting party for all European sales contracts and boasts a much larger workforce than its French affiliate. Google therefore argued that CNIL should transfer the case to the Irish Data Protection Commissioner which would act as the lead supervisory authority.
However, CNIL rejected Google's arguments and held that the European seat of an organisation does not necessarily equate to the "main establishment" which defines the lead supervisory authority under Article 56 of the GDPR. CNIL considered that the Irish establishment did not have real decisional powers and therefore could not be regarded as the main establishment for the matter at hand. Moreover, it noted that Google Ireland Limited had not appointed and registered a data protection officer with the Irish Data Protection Commissioner. In addition, Google had admitted during the proceedings that it was still in the process of transferring responsibility from its global headquarters to the Irish affiliate. On this basis, CNIL concluded that Google could not assert a "main establishment" for the processing activities at hand, and that, as a result, CNIL was competent to handle the complaints that it had received.
Insufficient Transparency on Use of Personal Data
First, complaints by NOYB and LQDN argued that Google had failed to provide the required information to users about the processing of their personal data.
Google had adopted various initiatives in this regard, including a "dashboard" for users and a "privacy check-up" tool. However, CNIL considered that these measures are insufficient.
In particular, CNIL found that the overall architecture did not allow for the providing of information as required under Articles 12 to 14 of the GDPR. It held that users would have to navigate various notices and click different hyperlinks before finding essential information. For instance, CNIL noted that information about the personalisation of advertisements and information on geolocalisation requires at least five steps before it can be retrieved. Similarly, information on retention periods was found to be hiding behind a title which did not clearly label its content. Accordingly, CNIL concluded that the information was not provided in a transparent and easily accessible manner, as required by the GDPR.
CNIL thereby considered that Google's processing activities are particularly "massive and intrusive", and are taken from a large number of sources, including mobile phone use, Gmail, YouTube, as well as other information society services and third-party websites using Google Analytics cookies. This information is deemed to provide very precise information about the most intimate aspects of a person's private life, including their habits, taste, contacts, opinions as well as their movements. This led CNIL to conclude that the information provided regarding the purposes for which the data would be used, was often too general and insufficiently clear.
No Valid Consent for Personal Advertisements Targeting Users
Under the GDPR, any processing of personal data must be based on a 'lawful basis' set out in Article 6 of the GDPR (or Article 9 for categories of sensitive data). CNIL held that Google's notices to users were not clear as to whether the processing for the purpose of personal advertisements targeting users would be based on consent (Article 6.1 (a) of the GDPR) or Google's legitimate interests (Article 6.1 (f) of the GDPR). During the proceedings, Google clarified that its use of personal data for personal advertising was based solely on the user's consent.
In its decision, CNIL refers to the Article 29 Working Party's 'Guidelines on consent under Regulation 2016/679' (WP259), which explain that 'for consent to be informed it is necessary to inform the data subjects of certain elements that are crucial to make a choice. [...] [A]t least the following information is required for obtaining valid consent:
- the controller's identity,
- the purpose of each of the processing operations for which consent is sought,
- what (type of) data will be collected and used,
- the existence of the right to withdraw consent,
- information about the use of the data for automated decision-making in accordance with Article 22 (2)(c) where relevant, and
- on the possible risks of data transfers due to absence of an adequacy decision and of appropriate safeguards [...]."
As a result, CNIL held that the above shortcomings in terms of transparency also affect the validity of the consent that is obtained. It considered that users cannot have a clear idea about the nature and volume of the data that are collected about them.
CNIL furthermore held that the manner in which consent was collected failed to satisfy the requirements of specific and unambiguous consent. It noted that when a user creates an account, it is requested to accept the privacy settings. To see these settings, the user must click through to see "more options", where it will find that the various options, including personalised advertisements, are pre-ticked. Users who do not click through to "more options" and just accept the settings, will obtain a pop-up window alerting them that their account will be set to accept personalisation. CNIL does not consider this to suffice for obtaining valid consent. It explains that, in order to be valid, consent must be obtained by means of an active step of the data subject, and that consent must be specific for each purpose. CNIL thus concluded that the consent for use of personal data for personalised advertisements, which was by default automatic and hidden behind a hyperlink, was unlawful.
CNIL Imposes First Significant Fine under GDPR
As noted, CNIL held that the facts at hand and the severity of the infringement justified a fine of € 50 million.
The facts relate to various data, including browsing information, use of mobile applications, geolocalisation of the device as well as purchases which give insight into the life, opinions and social interactions of the users. This information is obtained from various sources and combined to offer – according to CNIL – virtually limitless possibilities for the company.
The infringement was considered to be particularly severe since it concerned essential elements of the GDPR, such as the lawful basis and transparency requirements. CNIL also pointed out that Google drew considerable benefits from processing personal data for personal advertisements and should have paid particular attention to its compliance with the GDPR.
Google announced that it would appeal the decision.
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