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Irish Guidance on Consent & Cookies – Grace Period ends on 5 October
Published on October 1, 2020 AUTHOR PRIVACY RESEARCH TEAM
On 6 April, the Data Protection Commission of Ireland (DPC) released a substantive Guidance Note on cookies (Guidance) and provided organizations a grace period of six months to ensure compliance. After the end of the six-month window, which is 5 October 2020, the Irish DPC may act to enforce the Guidance and can hold organizations liable for failing to obtain valid consent before the processing of cookies.
This Guidance was issued based on the report released by the DPC on the findings of a “cookie sweep survey”. The survey was conducted on around 38 organizations operating within the territory of Ireland and around 35 of those companies were found to be significantly lacking in cookie compliance requirements. The DPC noticed the following non-compliance practices of organizations, among others:
- Dropping of non-essential cookies on landing pages without obtaining user’s consent,
- The lifespans of most cookies that are dropped are not proportionate to the purposes of the cookies,
- Inadequate cookie banners,
- Frequent use of pre-checked boxes for the processing of non-essential cookies,
- A lack of stand-alone cookie policies,
- Failure to fulfill the requirements of a valid consent as per the General Data Protection Regulation (GDPR) and the Irish e-Privacy Regulations.
Based on its identification of the above non-compliance areas, the Irish DPC released the comprehensive Guidance for organizations. The Guidance explains the purposes of cookies as well as it adheres to the requirements of the GDPR, e-Privacy Directive, and the Guidelines on Consent of the European Data Protection Board, released on 4 May 2020 that declared cookie walls invalid.
Read EDPB’s Updated Guidelines on Consent
The Guidance also complements the landmark decision by the Court of Justice of the European Union in the Planet49 case that declared the use of pre-checked boxes as an invalid mechanism of obtaining users’ consent.
Key Points:
Some of the key points of the DPC Guidance are set out below:
Valid consent
Data controllers must obtain valid consent of users before the processing of cookies except the processing of strictly necessary cookies and communication cookies, i.e. cookies that are processed for carrying out the transmission of a communication over a network. A user’s consent must be freely given, specific, informed, and unambiguous as per Article 4(11) of the GDPR.
Multiple purposes
Data controllers must allow individual cookie selection by purposes and the user’s consent must be specific to each purpose of the cookie.
Easy withdrawal of consent
Data controllers must allow users to withdraw their consent to the processing of cookies via a user-friendly and easy method.
Compliant cookie banner
In order to ensure that the cookie banner complies with the applicable legal requirements, data controllers must give equal prominence to “accept” and “reject” buttons on the cookie consent banner. Moreover, the cookie banner must contain a link to the privacy policy and cookie policy providing detailed and further information. The use of wordings such as “by your continued use of the website – either through clicking, using, or scrolling it – consent to the processing of cookies will be assumed” is not allowed.
Cookie lifespans
The duration of each cookie must be proportionate to its purposes.
Transparency requirement
Data controllers must provide clear and comprehensive information to users about the use of cookies before the processing of cookies and ensure compliance with the transparency obligations of the GDPR.
No pre-checked boxes
Data controllers are not allowed to use pre-checked boxes for the processing of non-essential cookies.
Refresh consent
Data controllers must reaffirm the user’s consent after every six months.
Controller-processor contracts
Data controllers must arrange controller-processor contracts when they use a third-party payment company to process payments for goods or services of the data controller. In such a case, the controller-processor contract must be in accordance with the requirements of Article 28(3) of the GDPR.
Mandatory data protection impact assessments
Data controllers must conduct data protection impact assessments for certain types of data processing such as processing that involves systematic monitoring or tracking of individuals’ locations.
Consent Management Platforms
The DPC acknowledges the use of Consent Management Platforms. Data controllers must maintain records of users’ consents as part of the processing activities as per the requirements of Article 30 of the GDPR.
How SECURITI.ai can help?
This Guidance Note reminds data controllers that they need to comply with the requirements of the valid consent before the processing of cookies as per the GDPR and e-Privacy Directive. Data controllers must bring their cookie consent practices in line with the DPC’s Guidance Note before 6 October to avoid any penalties for non-compliance.
SECURITI.ai’s Cookie Consent Banner Solution enables companies to build cookie consent banners in accordance with the applicable legal requirements with cookie auto-blocking, periodic scanning, and preference center features. SECURITI.ai’s Universal Consent Management Solution captures consent and automates revocation fulfillment.
Ask for a DEMO today to understand how SECURITI.ai can help you comply with the consent requirements of GDPR, e-Privacy Directive, Irish Data Protection Commission’s Guidance, and a whole host of other global privacy laws and regulations, such as the CCPA, with ease.
Read Why you need to adopt SECURITI.ai’s Consent Management Platform
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The Lei Geral de Proteção de Dados (LGPD) is modeled with similarities to the General European Data Protection Regulation (GDPR) and contains sixty-five articles. It was approved on August 14, 2018 and its validity has undergone several changes, the last relevant fact being MPV 959. LGPD is in effect since September 18, 2020. The sanctions by the ANPD (Brazilian Data Protection Authority) were postponed to August 2021. The LGPD allows people have more rights over their data and expects organizations to comply with their regulations or face heavy penalties or fines.
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The government of New Zealand has recently replaced its long-existing Privacy Act of 1993 with a modernized version, the Privacy Act 2020. The New Zealand Privacy Act 2020 (NZPA) will take effect from December 1, 2020.
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The Personal Data Protection Act, B.E. 2562 (2019) ('PDPA') is Thailand's first consolidated data protection law, which was published in the Thai Government Gazette on 27 May 2019. This law was said to go into effect on 27 May 2020. However, in May 2020, the Thai Cabinet through a Royal Decree has deferred the enforcement of certain data protection provisions of the PDPA until 31 May 2021.
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In order to protect the data of individuals in South Africa, Parliament assented to the Protection of Personal Information Act (POPIA) on 19th November 2013. The commencement date of section 1, Part A of Chapter 5, section 112 and section 113 was 11 April 2014. The commencement date of the remaining sections (excluding section 110 and 114(4)) was 1st July 2020. As per the Regulator’s Operational Readiness Plan the Regulator will be able to take enforcement actions for the violation of POPIA by July 1st 2021.
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The DIFC Data Protection Law, 2020 lays down regulations regarding the collection, disclosure and processing of personal data in the DIFC, a special economic zone in Dubai. It also gives rights to individuals whom the personal data relates to and provides power to the Commissioner of Data Protection to enforce the law, enact regulations and approve industry-wide Codes of Conduct.
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The Australia Privacy Act 1988 (Privacy Act) was enacted to protect the privacy of data subjects and regulate how Australian agencies and organizations with an annual turnover of more than $3 million handle their customers’ personal information.
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Singapore’s Personal Data Protection Act (PDPA) comprises various provisions governing the collection, disclosure, use, and care of personal data. It recognizes the rights of individuals to have more control over their personal data and the needs of organizations to collect, use, or disclose personal data for legitimate and reasonable purposes.
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On April 13, 2000, the Personal Information Protection and Electronic Documents Act (PIPEDA) received Royal Assent. It came into force in stages, beginning on January 1, 2001. PIPEDA came fully into effect on January 1, 2004. The legislation applies to organizations that collect, use or disclose personal information in the course of commercial activities.
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After the invalidation of Privacy Shield, many companies are relying on the SCCs in order to continue transferring data of EU citizens to companies based in countries who are not deemed adequate for data transfer.
After the CJEU judgement, it is clear that these companies have to conduct Risk Assessments with the data recipients in these countries in order to ensure they have enough controls to mitigate any potential data or regulatory risk.
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On 2nd March, 2019, the Department of Health—Abu Dhabi (DoH), launched the Abu Dhabi Healthcare Information and Cyber Security (ADHICS) Standard. This is the first standard that aims to provide healthcare professionals and entities a comprehensive guide to the regulation of healthcare data in Abu Dhabi. This law ensures the highest levels of privacy and security of patients’ data, in line with international standards, is maintained.
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On January 31, 2020, the government of Saudi Arabia issued the Executive Regulations to the Saudi E-Commerce Law 2019 (“ECL”) that was in effect since October 2019. The Executive Regulations together with the ECL (“Law”) aim to protect consumers’ personal data by requiring organizations to take appropriate technical and administrative measures.
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Turkey was one of the first countries to start the trend of legislating data protection. Turkey published “Law on the Protection of Personal Data No. 6698 (LPPD) covering personal data protection on April 07, 2016.” The LPPD is based on the European Union Data Protection Directive 95/46/EC and has several similarities with the GDPR. It aims to give data subjects’ control over their personal data and outlines obligations that organizations and individuals dealing with personal data must comply with. The LPPD has also provided comprehensive guidelines for the transfer of personal data to the third parties.
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In December 2019, India, following several other countries' footsteps on the privacy laws' developments, introduced the Personal Data Protection Bill (PDPB) to regulate the processing, collection, and storage of personal data.
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On 13 October 2020, the National People's Congress of the Republic of China submitted the long awaited draft of the Personal Information Protection Law (Draft PIPL) to the Standing Committee meeting for preliminary review. This draft was officially released for the public consultation on 21 October, 2020. The consultation period will last until 19 November 2020.
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The Irish Data Protection Act, 2018 (Irish DPA) implements the General Data Protection Regulation (GDPR) and transposes the European Union Law Enforcement Directive in Ireland. Since it incorporates most of the provisions from the GDPR and the Law Enforcement Directive with limited additions and deletions as per the national law, it is considered to be the principal data protection legislation in Ireland.
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The Personal Data (Privacy) Ordinance (Cap. 486) as amended in 2012 (the “PDPO) is the primary legislation in Hong Kong which was enacted to protect the privacy of individuals’ personal data, and regulate the collection, holding, processing, disclosure, or use of personal data by the organizations.. The Data Protection Principles ( the “DPPs or DPP ''), which are contained in Schedule 1 to the PDPO, outline how entities should collect, handle, disclose, and use personal data.
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In 2012, the Philippines passed the comprehensive privacy law, Data Privacy Act 2012 Republic Act. No, 10173 (the "DPA"). The DPA recognizes the rights of individuals to have more control over their personal data while ensuring a free flow of information to promote innovation and growth.
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The United Arab Emirates (UAE) has a Federal Telecommunication Law ( Federal Law) which requires that a company must hold a license in order to provide public communications services and operate public telecommunication networks. Under this Federal Law, a Telecommunication Regulatory Authority (TRA) was established which regulates the telecommunication sector in the UAE.
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