(and why your social media targeting may be unlawful)
By Ben Nolan, associate, and Stephen Sidkin, partner at Fox Williams LLP
When a consumer views some clothing on your website, will they see it on their newsfeed next time they log in to their Facebook or Instagram account? If so, do you know whether you are complying with the law when using the cookies and tracking technologies (such as the Facebook pixel) which result in this happening?
A quick check online in the last few weeks showed that some of the UK’s largest retailers, such as DFS and IKEA, are still not complying with the rules.
However, recent guidance from the UK’s data protection regulator (“ICO Guidance”) has helped to shed some light on the matter.
1. clear and comprehensive information about the purposes of, or access to, the information in the cookie are provided to the user; and
2. the consent of the user has been obtained (unless the cookie falls within the “strictly necessary” exemption – as described further below).
The ICO Guidance has now helped to clarify the above requirements. The key points are as follows:
1. Clarification of the “strictly necessary” exemption
User consent is not required for cookies which are “strictly necessary”. This means that the use of the cookie must be “essential” for the provision of the service which has been requested by the user or to ensure compliance with applicable law.
Perhaps not surprisingly, the ICO Guidance clarifies that advertising cookies, such as the Facebook pixel, which are commonly used by retailers and allow them to target users online (for example, through their social media accounts) are not considered to be “strictly necessary”.
Examples of the types of cookies which would benefit from this exemption include those which:
· remember the goods in a user’s basket when a user is shopping online; or
· are required to provide adequate security standards to ensure compliance with the GDPR.
It follows that cookies which are often considered important but are not essential to the provision of the service to the user or for compliance with the law, such as analytics cookies, do not come within the strictly necessary exemption. Accordingly “performance cookies”, such as Google Analytics, which measure the way in which individuals use a website and can help evaluate the success of promotions and campaigns are not covered by this exemption.
2. Clear and comprehensive information
In relation to cookies, this means that online retailers need to review and update their cookies policies to ensure that these are drafted in a sufficiently clear and easily accessible manner to be understood by a normal user.
3. The standard of consent is high
The ICO confirmed that the standard of consent for using cookies is the same as that set out under the GDPR, even for cookies which do not involve the processing of personal data. Under the GDPR consent must be:
· fully informed and freely given;
· express as opposed to implied;
· specific (that is, not bundled with other matters); and
· capable of being withdrawn.
Implied consent can no longer be relied on for cookies. Websites which use non-essential cookies without specifically requiring users to consent to these upon their first access to a site are therefore not compliant. As a result, non-essential cookies should be switched off by default.
Of the various furniture retailers’ websites that we reviewed at the end of January 2020, a large proportion of these were still relying on implied consent, using language along the lines of: “By continuing to use our website, you consent to us using cookies in accordance with our cookies policy”. This does not constitute a valid consent under the relevant regulations.
Take home points
· If past history is anything to go on, it would be reasonable to expect the ICO to seek to make examples of businesses which do not comply in the future. Meanwhile it is the case that the ICO is currently receiving a large number of complaints in relation to cookies and it can be expected that this is also resulting in bad publicity for the retailers concerned on social media.
· Irrespective of the above potential ICO fines and bad publicity, retailers are being trolled by some individuals who are bringing court cases claiming infringement of data protection law and forcing retailers to settle out of court by paying them off.