The Article 29 Working Party recently published the guidelines it provided to Google earlier this year explaining how, in the eyes of the Article 29 Working Party, Google could achieve compliance with European data protection legislation. These guidelines provide a useful overview of the current thinking of EU regulators around the way in which privacy policies should be drafted. The Working Party consists of representatives from the data protection authority of each EU Member State, the European Data Protection Supervisor and the European Commission. In a letter to Google dated 23 September 2014, the Working Party outlined “guidelines containing a common list of measures” that Google can implement to ensure it complies with European data protection legislation. A draft version of these guidelines had previously been provided to Google privately on 2 July 2014.

The guidelines were issued following reviews of Google by a number of national data protection authorities in the EU in 2013 and 2014. Some of these investigations concluded that Google’s current privacy policy did not meet the requirements set down by various national data protection laws. Google had previously been subject to fines and regulatory criticism when it merged its privacy policies across all of its various services.

The appendix accompanying the letter contains nineteen separate recommendations through which the Working Party believes Google can improve its data protection policies.

Privacy Policy – Drafting Recommendations

The Working Party states that Google’s privacy policy must be “immediately visible and accessible” from each service landing page and has issued a stringent set of criteria against which it will assess privacy policies in the future. Privacy policies should: 

  1. provide “clear, unambiguous and comprehensive information” about proposed data processing;
  2. provide exhaustive lists of the types of personal data processed and the purposes for which such data are to be processed;
  3. give information about the identity of the data controller and an address which a data subject can contact to exercise their data privacy rights (such as requests for access or deletion);
  4. be presented in a multi-layered fashion (i.e. the first layer should describe the general policy, the second layer should include service-specific policies and details of how information is processed, while the third layer should comprise the ‘in product’ notice alerting Google users to the company’s data processing purposes); and
  5. be personalised, where possible, and show only the data processing which Google is conducting with that individual user’s data.

Interestingly, the Working Party is of the opinion that “users cannot be expected to read the Terms of Service update to be made aware of important new purposes for the collection, processing, sharing or any other use of their personal data”. Such purposes should be presented in the company’s privacy policy.

Information Principles

The Working Party has also advised Google to avoid indistinct language such as “we can” or “​we may”. Instead, Google, and other web search providers, should use direct language with clear intentions such as “if you use services A and B, we will…” that leaves users in no doubt as to what their information is used for. This is a change from standard drafting practices at present, which tend to use permissive (i.e. ‘may’) rather than mandatory (i.e. ‘shall’ or ‘will’) language.

Equally, the Working Party is keen that Google’s internal policies provide clear guidance to Google employees about any new services and features that the company offers which collect or process new data on behalf of users. The Working Party stated that staff should be informed that any such activities require the prior consent of users on an ‘opt-in’ basis.

Given the rapid diversification of methods by which users now interact with Google products, the Working Party wants the principles outlined to apply equally to every terminal type (e.g. mobile, tablet, desktop, wearable and other devices such as Chromecast).

User Controls

The Working Party directed Google to provide its users with “more elaborate tools to manage their personal data and to control the usage of their personal data between all Google services”. The Working Party is particularly keen for users to be given greater access to a privacy dashboard and for a user’s dashboard to include information from all services provided by Google.

The dashboard should give users the option to object or consent to data collection. The Working Party also wants user to be provided with the option to delete user data/remove services. Privacy-friendly default settings should be set on the dashboard.

Data Retention

In the data retention sphere, the Working Party reiterated the need for Google to adhere to the proportionality principle (i.e. data should only be retained for as long as is necessary to achieve the purposes it was originally gathered for). Additionally, the Working Party stated that Google should define retention policies for all personal data processed by the company (i.e. collected, generated, produced) about active and passive users. These policies should be sent to each individual European data protection authority. Each retention period should be justified and specific to its individual purpose.

Conclusion

The list of nineteen recommendations sent to Google contains a mix of old and new recommendations. While some of the recommendations are unlikely to surprise privacy lawyers and commentators (e.g. the need for data processors and controllers to adhere to the proportionality principle), some of the recommendations are novel and call for reflection. For example, the provision of personalised privacy policies which only show specifically what data is being used in relation to an individual user rather than a generic catch-all privacy policy would mark a significant departure for Google and its competitors.

The fact that the Article 29 Working Party provided Google with such a specific set of criteria by which it will judge Google’s compliance with EU data protection laws, many of which have no explicit basis in the EU Data Protection Directive, perhaps indicates a new willingness on the part of the Working Party to take a more prescriptive approach towards the steps that internet companies should take to provide their users with information about data processing.