Effective May 25, 2018: GDPR and What It Means for Publishers
The GDPR (General Data Protection Regulation) went into effect on 25th May 2018. Due to the importance of complying with the regulation, we want to ensure you receive clear guidance and a consistent message from Rakuten Marketing.
What is the GDPR?
The European Union (EU) General Data Protection Regulation (GDPR) is the new legal framework governing the use of personal data across all EU markets. Think of it as a new set of data laws fit for the digital age.
It replaces current national data protection laws and the existing EU data protection framework. The GDPR is designed to give consumers more control of their personal information and applies identically across the EU (including the UK). Significantly, the GDPR introduces increased sanctions; organizations can be fined up to €20m or 4% of annual turnover (whichever is greater) if they breach the law.
The New Rules
We’ve selected the areas of the GDPR we believe are most relevant at the present time for the digital advertising industry. However, it is important to familiarize yourself with the full details as there are many more implications that need to be understood. In addition, we have provided useful links at the end of this communication.
- Personal Data
Consumers’ personal data sits at the heart of the GDPR and the classification of personal data is broadened under the GDPR. This means data the digital advertising industry relies on that is not currently considered personal data may under the GDPR now be classified as such. While a definitive list of personal identifiers does not exist for marketers, we can safely assume it will include information such as cookie IDs, customer numbers, IP addresses, device IDs, etc. These are identifiers that many networks and platforms capture as part of their standard tracking and retargeting efforts.
Advertisers using tracking will therefore have an obligation to ensure they are legally compliant with the new regulation.
- Legal Basis for Processing Personal Data
Businesses will require a legal basis to process personal data. There are six legal bases available; the two most commonly used in the digital advertising sector are consent and legitimate interest.
Legitimate interest is distinct from consent. According to the Information Commissioner’s Office (ICO), “It is likely to be most appropriate where you use people’s data in ways they would reasonably expect and which have a minimal privacy impact, or where there is a compelling justification for the processing.” Should a business choose legitimate interest they have to be confident in demonstrating this as an appropriate legal basis.
Where consent is considered necessary the ICO states, “Consent means offering individuals real choice and control. Genuine consent should put individuals in charge, build customer trust and engagement, and enhance your reputation.”
“Contract” is also a legal basis which may be applicable in some cases. It refers to instances where there are specific contract agreements in place between a business and its customers (data subjects) which allow the business to collect and process personal data.
Click here for details of all the legal bases.
The ePrivacy Directive is a lex specialis (Latin for law governing a specific subject matter) to the GDPR. This means that the ePrivacy Directive has to be applied where the rules are more specific than in the GDPR. The ePrivacy Directive obliges the controller to obtain consent for cookies and direct marketing. The ePrivacy Directive is currently under review and will be replaced by a regulation within the next year or so.
A focus of the revision is to improve transparency to consumers and introduce stricter consents for cookies (and similar tracking technologies). Under the existing ePrivacy Directive, the ICO has made clear consent is necessary for “cookies and similar technologies.” Thus, regardless of which legal basis is used for processing personal data under GDPR rules, the ePrivacy Directive remains in place meaning that unambiguous consent is required for the use of many cookies because the GDPR only considers consent sufficient if it is unambiguous. This means that marketers should be reviewing their consent mechanisms along with ICO guidance and making changes accordingly.
- An Industry Consent Solution
Given the potentially significant impact on all forms of online advertising, the industry has collaborated to create general standards and approaches. In November 2017 the Interactive Advertising Bureau (IAB) Europe announced a technical standard for online consent and industry stakeholders are building a consent tool which is intended to ensure GDPR and ePrivacy Directive compliance.
Rakuten Marketing will be recommending a consent solution in the coming weeks; however, you may be able to use a version of your own. There are a variety of options and tools available online and we advise that solutions should be assessed to ensure they can be implemented to comply with the regulations.
5. Next Steps Checklist for Publishers
- Publishers should assess how GDPR impacts their business and document the measures taken to comply with the rules.
- Publishers should pay attention to ensuring transparency to consumers and decide the most appropriate legal basis for collecting and processing personal data from site visitors.
- Publishers should assess and upgrade privacy policies and cookie notices to provide transparency and upgrade consent capture.
- Publishers should seek their own legal advice. This communication should not be read as legal advice.
- Publishers should refer to their individual affiliate networks and platforms for any specific guidance or requirements to comply with GDPR.
The GDPR signifies changes that all businesses will have to make and the impact on the industry at this stage is uncertain. However, these impacts can be mitigated with demonstrable understanding, effort, and measures to comply with the rules. The deadline of 25th May 2018 marks the start of this new age of data privacy.
It is important that you understand your obligations as a business for the GDPR and make any necessary amendments to be compliant. Rakuten Marketing is available to help support our partners through the GDPR process to ensure that they are in compliance. Please do review the links below for more information and consider following our advice above.
Chad Jaquays, SVP Group Publisher Team
Anthony Plachy, Sr. Legal Counsel
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