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Published on February 15, 2021 AUTHOR - PRIVACY RESEARCH TEAM
Some of the key points of the new Guidelines are set out below:
Privacy-by-design refers to integrating data protection considerations in the design stage. Privacy-by-default, on the other hand, requires organizations to ensure, by default, that the strictest privacy setting is available to the user. Garante reaffirms these two principles, as set out in the General Data Protection Regulation (GDPR), and requires organizations to not drop any non-essential cookies or other tracking technologies without obtaining the user’s consent. Similarly, organizations should not make use of cookie walls or pre-selected checkboxes to obtain the user’s consent and all non-essential cookies must be disabled by default.
Garante recognises that there are two main categories of cookies: technical cookies and profiling cookies.
Garante identifies that analytics cookies can be considered technical cookies under certain circumstances and would therefore not require the user’s prior consent. In that case, the use of such analytics cookies must be able to create a reasonable uncertainty as to the identity of the user. This is usually obtained by integrating the structure of the IP address within the cookie and masking portions of the same IP address. Such data minimization measures significantly reduce the identifying power of analytics cookies, and therefore, the cookies can be classified as technical cookies.
Garante’s new Guidelines apply equally to cookies and passive identifiers such as fingerprinting. The Italian data protection authority recognises that fingerprinting is the most common and increasingly used passive identifier to identify users’ devices, build users’ profiles, analyse their behavior, and display personalised advertisements. However, unlike cookies, the user is unable to directly and independently stop the profiling in case of the use of fingerprinting but instead, the user has to resort to the data controller.
Organizations are not required to recollect consent at every visit of the website user. However, they must record consent to be able to demonstrate that valid consent has been obtained from the user. Organizations must reaffirm a user’s consent where the conditions of the collection of consent have changed or if they are not aware that cookies have already been installed on the user’s device in order to be re-transmitted.
Overall, the new Guidelines align with the GDPR which requires organizations to process personal data lawfully, fairly, and transparently. The Guidelines also adhere to the requirements of the e-Privacy Directive and the European Data Protection Board’s guidelines on consent, released on 4 May 2020.
Organizations are now encouraged to bring their cookie consent practices and cookie consent banners in line with the new Guidelines to avoid the imposition of any fines or penalties.
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