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Spanish Guide on the use of Cookies: Deadline to implement is Over
Published on November 10, 2020 AUTHOR PRIVACY RESEARCH TEAM
The deadline to implement the Updated Guide on the Use of Cookies (Updated Guide) released by the Agencia Española de Protección de Datos, the Spanish Data Protection Authority (AEPD) was 31st October 2020. Organizations were provided a three-month transition period to adopt the Updated Guide when it was released on 28 July 2020. It aligns with the latest guidelines of the European Data Protection Board on consent.
Some of the key takeaways of the Updated Guide are set out below:
- Valid consent:
For consent to be valid, it must be freely granted and informed. The option to “continue browsing”, user click, scrolling, navigation, or any such similar behavior do not constitute valid forms of consent. Consent is deemed to be valid only where the user has made a clear affirmative and unequivocal action. Consent must be given for each specific purpose to ensure granularity.
- Separate consent to the use of cookies:
The acceptance of the use of cookies must be separate from the acceptance of the terms and conditions of the use of the website or service or the privacy policy of the website.
- Transparency requirement:
The information about cookies provided at the time of requesting the user’s consent must be sufficiently complete to allow users to understand its purpose and use. The information must be provided in a concise, transparent, and intelligible manner using clear and simple language. The use of phrases that confuse or distort the clarity of the message should be avoided.
- Layered information format:
One of the ways for obtaining consent to the use of cookies is to provide layered information.
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- First information layer: containing essential information such as the identity of the website publisher, the purposes for which cookies will be used, information whether the cookies will be used only by the publisher or also by third parties, information on the type of data to be collected and used, the mode in which a user can accept, configure or reject to the use of cookies, and a clearly visible link taking the user to the second information layer or the cookie policy. This information should be provided to users before the installation of cookies in a format that is visible to users. The Updated Guide provides several valid examples of a first information layer.
- Second information layer: containing detailed information as required under Article 13 of the GDPR such as the definition and generic function of cookies, information about the type of cookies that are used and their purpose, identification of who uses the cookies, information on how to accept, deny or revoke consent to the use of cookies, data retention period and where appropriate, information on the data transfers to third countries and when profiling involves decision-making automated with legal effects for the user or significantly affect users similarly, it will be necessary to inform the user on the logic used as well as the significance and expected consequences. The cookie policy should be easily and permanently accessible to users.
- Accessibility and visibility of cookies:
The information about cookies must be easily accessible. The accessibility and visibility can be enhanced in several ways:
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- By increasing the link size to the information or using a source different to distinguish that link from the normal text of the website,
- By positioning the link in areas that capture the attention of users or where an average user expects to find it,
- By using descriptive and intuitive names for the link,
- By boxing, underlining, or using other techniques to highlight the importance of the link.
- Easy withdrawal of consent:
Website publishers must allow users to withdraw consent to the use of cookies at any time. The method to withdraw cookies must be made as easy as obtaining consent. A button to reject all cookies must be installed.
- Cookie walls:
As a general rule, website publishers cannot make access to a service or its functionalities conditional on the user’s acceptance of the use of cookies. Where non-acceptance to the use of cookies prevents access to the website, totally or partially,
- the user must be properly informed about it,
- alternative access to the service must be offered to the user without requiring to accept the cookies,
- the services of both alternatives offered to the user must be genuinely equivalent, and
- the alternatives must be offered by the publisher and not by any other entity.
- Consent of minors:
In the case of children under 14 years of age, website publishers must make reasonable efforts to verify that the consent for the processing of personal data is given by the holder of parental authority or guardianship, taking into account the available technology and the circumstances of the treatment.
- Renewal of consent:
The validity of consent provided by a user for the use of a certain cookie must not have a duration longer than 24 months. During this time, the selection made by the user must be preserved so that the user is not asked to provide consent every single time he or she visits the page in question unless the purpose of cookies is changed.
- Liability:
Website publishers and third parties managing the cookies can define their relationships through contractual arrangements. However, the administrative liability against non-compliance with the cookie consent requirements cannot be contractually transferred to the other party. Therefore, both website publishers and third parties acting as processors must fulfill their respective obligations.
How SECURITI.ai can help?
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, Spanish Data Protection Authority’s Guidance, and a whole host of other global privacy laws and regulations, with ease.
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The EU General Data Protection Regulation (GDPR) came into effect on May 25, 2018 and changed the global privacy landscape. It has broadened the definition of processing activities and personal data, impacting companies worldwide, and has tightened the rules to obtain consent before processing information.
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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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South Korea has a general law and several special laws that cover data protection and individuals' privacy. South Korea's data protection regime is considered one of the strictest data protection regimes owing to its notification requirements, opt-in consent, extensive data subject rights, mandatory data breach notifications, and heavy sanctions in case of non-compliance.
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