Dutch DPA Concludes That Google Is in Breach of Data Protection Act

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By Stephen Gardner  

Nov. 29 --Google Inc. has breached the data protection law in the Netherlands by failing to adequately inform users of its services that it is collecting their data, and by failing to fully disclose the uses to which personal data might be put, the Dutch Data Protection Authority (College bescherming persoonsgegevens, CBP) said Nov. 28.

In particular, Google collects user data via its different services, such as Gmail, Google+ and YouTube, and combines the data so that it can provide personalized advertising or personalized search results to users, but it “does not adequately inform users about the combining of their personal data from all these different services,” the CBP said in a Nov. 28 statement.

The CBP added that, in addition, Google breaches Dutch law because it does not provide users with an option to consent to or reject “does not offer users any (prior) options to consent to or reject” the processing of data from different services.

Under the Dutch Data Protection Act, acceptance by a user of general terms of service is not considered sufficient consent for the combining of personal data from different sources, the CBP said.

Policy Change Prompted Investigation

The CBP investigation into Google was prompted by the company's announcement in January 2012 that it would share, and track, user information across its email, social networking, YouTube, search engine and other services, as part of a plan to integrate its 60 privacy policies into one policy (16 PRA, 1/26/12). The company launched the policy change March 1, 2012, despite calls from data protection officials around the world not to move forward with the change (39 PRA, 2/29/12).

In October 2012, the Article 29 Data Protection Working Party of data protection officials from European Union countries asked the company to reconsider the policy (200 PRA, 10/17/12).

Subsequently, the CBP was one of six European DPAs to start an investigation into potential breaches of their national laws, which implement the 1995 EU Data Protection Directive (95/46/EC). DPAs from France, Germany, Italy, Spain and the U.K. also started investigations (67 PRA, 4/8/13).

Jacob Kohnstamm, the chairman of the CBP who is also the chairman of the Art. 29 Working Party, said in the Nov. 28 statement that the CBP's investigation had shown that “Google spins an invisible web of our personal data, without our consent. And that is forbidden by law.”

Hearing to Decide Further Steps

The CBP said it would hold a hearing with Google to discuss its conclusions and would then decide on enforcement action.

A CBP spokeswoman told Bloomberg BNA Nov. 29 that she could not provide a date for the hearing, but she said it would take place “soon.”

The CBP does not have the power to fine Google but could potentially impose an order requiring the company to amend its privacy policy, with a financial penalty if the company does not comply with the order, the spokeswoman said.

The potential financial penalty “depends on the kind of breach and the circumstances,” the spokeswoman said. A previous CBP order issued to Google over its alleged collection of wireless Internet data could have resulted in a penalty of 1 million euros ($1.36 million), but Google complied with the order, the spokeswoman added (78 PRA, 4/22/11).

Google said in a Nov. 29 statement to Bloomberg BNA that “our privacy policy respects European law and allows us to create simpler, more effective services. We have engaged fully with the Dutch DPA throughout this process and will continue to do so going forward.”

Coordinated Enforcement

Paul Kreijger, counsel with Linklaters LLP in Amsterdam, told Bloomberg BNA Nov. 29 that the CBP had invested considerable time in its investigation of Google and said “it seems not very likely that they will change their mind significantly” as a result of the hearing with Google.

The CBP has limited resources and so “to ensure compliance they will take on cases that have visibility,” Kreijger said.

He added that European DPAs are increasingly more likely to cooperate on investigations of international companies to enforce compliance.

Kohnstamm told Bloomberg BNA in September that European DPAs had learned from previous investigations into Google Street View that a coordinated approach was more effective for looking at Google's privacy policy (189 PRA, 9/30/13).


To contact the reporter on this story: Stephen Gardner in Brussels at correspondents@bna.com

To contact the editor responsible for this story: Katie W. Johnson at kjohnson@bna.com

An informal translation from Dutch of the CBP findings on the combining of personal data by Google is available at http://www.dutchdpa.nl/downloads_overig/en_rap_2013-google-privacypolicy.pdf.



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