Website Operator Jointly Liable for Data Collection and Transmission Through Facebook “Like” Button

On July 29, 2019, the European Court of Justice (ECJ) issued its decision in FashionID (Case C-40/17), determining that website operators are jointly liable with plugin providers for data collection and transmission through social media buttons and other embedded plugins. Although the ECJ found the operator and plugin provider to be jointly liable, the court placed the burden on the website operator to provide notice and, where necessary, obtain consent for the joint activity. Further, the court found the plugin provider to be independently responsible for any subsequent use of the data. The decision will likely prompt regulators to closely scrutinize the use of third-party plugins. Continue Reading

The ICO Issues Its Cookies Guidance: Clarified Stance and Enforcement Priorities

On July 5, 2019, the UK’s Data Protection Authority (ICO) issued its “Guidance on the use of cookies and similar technologies” (the Guidance) along with a brief explanatory blog post. At the same time the ICO updated its own website cookie notice and consent, leading by example. The ICO’s blog post makes clear that cookie compliance will increasingly be a regulatory priority, and that companies should start working towards compliance now. Continue Reading

FTC Seeks Public Comment on Children’s Online Privacy Protection Rule

In a notice issued July 17, 2019, the Federal Trade Commission (FTC) is seeking public comment on a wide range of issues related to the Children’s Online Privacy Protection Act and implementing Rule (COPPA). The FTC has also announced a public workshop to review the COPPA Rule, to be held on October 7, 2019. Continue Reading

The CNIL Sharpens Requirements on Deployment of Tracking Technologies

On July 18, 2019, the French Data Protection Authority (CNIL) issued new guidance on the use of cookies and similar tracking technologies (collectively referred to as “cookies” below).[1] The guidance clarifies the instances in which companies must obtain consent for the use of cookies and specifies the requirements for obtaining consent. Continue Reading

Looking Back: The ICO’s Busy Year and Its Record-Breaking Fines

The UK Supervisory Authority (the ICO) has had a headline-busting month. On July 9, 2019, the ICO announced its intention to fine Marriott International more than £99 million under the GDPR (General Data Protection Regulation) for a data breach which took place last year,[1] a figure that would have been record breaking had the ICO not announced its intention to fine British Airways £183 million 24 hours earlier.[2] While it is clear that both of these hefty penalties relate to deficiencies in security practices, the actions that paved the way for such draconian fines are yet to be made public (see “Massive GDPR Fine Proposed by UK ICO Confirms Trend of Increased Focus on EU Data Breaches.”) Continue Reading

The CNIL Announces Its 2019-2020 Action Plan on Ad Targeting

On June 28, 2019, the French Data Protection Authority (CNIL) released its 2019-2020 action plan on ad targeting (action plan);1 among other things, the CNIL announced that it will issue new cookie guidance later this month and that, once the guidance is published, companies will have a 12-month grace period to come into compliance.


When the General Data Protection Regulation (GDPR) became effective on May 25, 2018, it imposed stricter conditions for obtaining valid consent to process personal data. In short, consent must be freely given, specific, informed, and unambiguous. Individuals must also be able to withdraw their consent at any time. The European Data Protection Board (EDPB) issued guidelines to further clarify the “do’s and don’ts” for obtaining valid consent (consent guidelines), including that scrolling down or swiping through a website is not enough to obtain valid consent. Rather, consent must be obtained via a clear and affirmative action, such as clicking on an “I agree” button.

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