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Alert

Doing Business in Europe? Social Media Prosecution in Germany Flags Data Consent Problem for All Businesses

By Steven Farmer

Alert

By Steven Farmer

11.16.11

Do you transfer personal data from Europe to the US? Do you use cookies on a website which is aimed at European customers? Do you send marketing emails to Europe? Do you otherwise "process" data in Europe? Do you really have consent to process personal data? If any of these questions strike a chord with you, then you should certainly note recent trends in the EU regarding the concept of "consent," not least the news from Germany that Facebook is to be prosecuted (and potentially fined up to $400,000) over its facial recognition software feature and for failure to properly obtain consents.

This issue of what constitutes proper consent, or not, has been coming to the boil in 2011.

A recent Opinion published by the Article 29 Working Party (the grouping of data protection authorities from each EU state - the "Working Party"), looked again at the concept of "consent," which, subject to certain exceptions, is required from individuals before such activities are carried out. Adopted 13 July 2011, it was aimed to provide a thorough analysis on the concept of consent as currently used in the European Data Protection Directive 95/46/EC and the e-Privacy Directive 2002/58/EC.

Germany's Hamburg Data Protection Authority (DPA) announcement that it is now to start proceedings against Facebook over its facial recognition feature and photo tagging has further highlighted what a problem the issue of consent can be in the EU. The DPA, like many other EU enforcers, has been losing patience with companies who don't seem willing to comply with the black letter requirements, particularly around consent, and what many have "got away with" in the past will now likely generate trouble and possible exposure to increasingly large fines. Dismissing Facebook arguments that a checkbox element amounted to compliance, the DPA is reported as saying further negotiation is "pointless" and will now look to enforce compliance with fines of up to 300,000 euro (over $400,000).

Just to top it all, we have, of course, also had confirmation this past week that proposals to overhaul the DP Directive itself should be forthcoming early in 2012.

This alert will look at the complex issue of consent and see if the recent Opinion has at least managed to shed some light.

Download: Doing Business in Europe? Social Media Prosecution in Germany Flags Data Consent Problem for All Businesses

Tags
Retail, Ecommerce & Consumer Brands, Intellectual Property, Internet & Interactive Entertainment, Internet & Social Media
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