On January 19, the Irish Data Protection Commission (DPC) announced the conclusion of an inquiry into the data processing practices of a U.S.-based messaging service’s Ireland operations and fined the messaging service €5.5 million. The investigation was part of a broader GDPR compliance inquiry prompted by a May 25, 2018 complaint from a German data subject.
The DPC noted that in advance of the date on which the GDPR became effective (May 25, 2018), the U.S. company updated its terms of service and notified users that, to continue accessing the messaging service, they would need to accept the updated terms by clicking “agree and continue.” The complainant asserted that, in doing so, the messaging service forced users to consent to the processing of their personal data for service improvement and security.
The company claimed that when a user accepted the updated terms of service, the user entered into a contract with the company. The company therefore maintained that “the processing of users’ data in connection with the delivery of its service was necessary for the performance of that contract, to include the provision of service improvement and security features, so that such processing operations were lawful by reference to Article 6(1)(b) of the GDPR (the ‘contract’ legal basis for processing).” The complainant argued that, contrary to the company’s stated intention, the company was “seeking to rely on consent to provide a lawful basis for its processing of users’ data.”
The DPC issued a draft decision that was submitted to its EU peer regulators (Concerned Supervisory Authorities or “CSAs”). The DPC concluded that the company was in breach of its GDPR transparency obligations under Articles 12 and 13(1)(c), and stated that users had “insufficient clarity as to what processing operations were being carried out on their personal data.” With respect to whether the company was obliged to rely on consent as its legal basis in connection with the delivery of the service (including for service improvement and security purposes), the DPC disagreed with the complainant’s “forced consent” argument, finding that the company was not required to rely on user consent as providing a lawful basis for its processing of their personal data.
Noting that DPC had previously imposed a €225 million fine against the company last September for breaching its transparency obligations to users about how their information was being disclosed over the same time period (covered by InfoBytes here), the DPC did not propose an additional fine. Six of the 47 CSAs, however, objected to the DPC’s conclusion as to the “forced consent” aspect of its decision, arguing that the company “should not be permitted to rely on the contract legal basis on the basis that the delivery of service improvement and security could not be said to be necessary to perform the core elements of what was said to be a much more limited form of contract.”
The dispute was referred to the European Data Protection Board (EDPB), which issued a final decision on January 12, where it found that, “as a matter of principle, [the company] was not entitled to rely on the contract legal basis as providing a lawful basis for its processing of personal data for the purposes of service improvement and security,” and that in doing so, the company contravened Article 6(1) of the GDPR.
The DPC handed down a €5.5 million administrative fine and ordered the company to bring its processing operations into compliance with the GDPR within a six-month period. Separately, the EDPB instructed the DPC “to conduct a fresh investigation” that would span all of the company’s processing operations to determine whether the company is in compliance with relevant GDPR obligations regarding the processing of personal data for behavioral advertising, marketing purposes, the provisions of metrics to third parties, and the exchange of data with affiliated companies for the purpose of service improvements.
The DPC challenged the EDPB’s decision, stating that the board “does not have a general supervision role akin to national courts in respect of national independent authorities, and it is not open to the EDPB to instruct and direct an authority to engage in open-ended and speculative investigation.” The DPC suggested that it is considering bringing an action before the Court of Justice of the European Union to “seek the setting aside of the EDPB’s direction.”