GDPR - Consent to the use of personal data on mobile app - stored per device or signed up user? For my mobile app, I need to get users' consent to process their personal data (and separately to use anonymized data for Google Analytics). I am unsure, however, how exactly I have to implement this. I could ask for consent when a user is signing up and that consent is then linked to this specific user. I ask for consent when an app is first opened and save this consent option on the device (and log this choice whenever an account is logged in on this device). Option 1 would be preferred since it is easier to implement technically, but I am not sure whether it is valid GDPR-wise. Someone could have created an account on device X and then download the app on device Y and login with the account created on device X. In this case, no consent would have been given on device Y. My question is 1. whether option 1 still would be valid according to the GDPR, and if not, whether option 2. is a viable alternative. If not, any advice on how it should be ideally handled is appreciated.
Either approach can be GDPR-compliant. An issue to consider is that you as a data controller relying on consent “shall be able to demonstrate that the data subject has consented to processing of his or her personal data” (Art 7(1)). This might be simpler if a record of the consent is linked to a user account. On the other hand, the GDPR's data minimization principle would suggest that decentral, offline approaches are preferable. So you do have some flexibility here, as long as you feel comfortable demonstrating that your approach is compliant when investigated by a supervisory authority. In many cases, consent is not an appropriate legal basis to start with. It is one of several options in Art 6(1) GDPR. If a data processing activity is necessary for fulfilling a contract with the data subject, then Art 6(1)(b) is more appropriate. If the processing is necessary for a legitimate interest, then Art 6(1)(f) would work – after conducting a balancing test. Art 6(1)(a) consent is appropriate when the processing activity is not necessary, or when a legitimate interest balancing test doesn't go in your favor, or in some cases when required by law. For example, consent is required when processing special categories of data (such as biometrics), or when accessing or storing information on the end user's device, beyond what is necessary for a service explicitly requested by the user (the “cookie law”, but much more general than cookies). Consent also has heightened compliance requirements compared to other legal bases. The data subject must be able to make a free decision, without any coercion. You must not use dark patterns. You must leave the data subject a real choice. You must not make access to your app conditional on giving unrelated consent (like providing access to a game only when the user gives consent for personalized ads). The data subject must be able to easily withdraw consent later, without suffering detriment for this. The EDPB has issued relevant guidelines that might be helpful here: EDPB guidelines 05/2020 on consent EDPB guidelines 2/2019 on Article 6(1)(b) in the context of online services (also relevant for apps) TL;DR: what is “necessary” for performance of a contract is an objective question, and should generally be considered from the data subject's perspective. It is not possible to circumvent consent requirements by putting unrelated processing purposes like “analytics” into a services' terms of service. The main purpose of this document is to serve as a rebuttal of Facebook's GDPR compliance strategy. But it's perfectly fine to avoid asking for consent for those processing purposes that are actually necessary for the user. I've noticed that you mentioned various Google services like Analytics and Firebase. To the degree that your use of these services implies an international transfer of personal data into the US, it might be impossible to be GDPR-compliant. Be wary of claims that you're only transferring “anonymous” data, as the GDPR has a fairly broad concept of identifiability.
You are missing something. The fact that you have a tick box and its state is saved in the database is enough. The burden of proof is only "on a balance of probabilities", so someone arguing that they didn't consent would have to demonstrate that you falsified the database entry somehow. In terms of GDPR requirements in general you don't need a greater level of proof than this, the key thing is that you have a robust system in place to obtain proof (such as not allowing data into the database without a tick in the box).
I'd say it's definitely illegal. Here's what the cookie notice says on Facebook at the time of writing this answer: By clicking on or navigating the site, you agree to allow us to collect information on and off Facebook through cookies. And here's what the GDPR define consent: ‘consent’ of the data subject means any freely given, specific, informed and unambiguous indication of the data subject's wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her; Also consider this, by the way: When assessing whether consent is freely given, utmost account shall be taken of whether, inter alia, the performance of a contract, including the provision of a service, is conditional on consent to the processing of personal data that is not necessary for the performance of that contract. Facebook's notice is a small blue bar at the top of its blue header, and you might not even notice it (at least on a desktop computer where I'm seeing it). I see no way to easily deny consent, for example there is no button saying "I don't accept". All you can do is click on the link to their cookie policy, and still that policy does not present a clear and easy way to deny consent in all different cases, it looks pretty complicated (among other things, it depends on whether you have a Facebook account or not). So denying consent looks pretty difficult, if at all possible. On the other hand, to give consent, you'd only have to click on any link. I tried this. I opened my browser in private/incognito mode, so it should not use any previous cookies. On Google, I searched for "facebook John Doe". Clicked on a result bringing me to a Facebook page with a list of profiles of people named John Doe. The cookie bar appears at the top, but let's pretend I did not notice it. Then I click on a profile, supposing I'm interested in a certain John Doe, and... I land on John Doe's profile on Facebook, now without the cookie notice! What happened is I gave consent by clicking on any link, that is, clicking on John Doe. I can't see any way this "consent" could ever be considered "freely given, specific, informed and unambiguous indication of the data subject's wishes". Why is Facebook not compliant? Well, they probably couldn't be compliant even if they wanted to, unless they wanted to go out of business. Lately I've been wondering what the purpose of Google Analytics would be if users were always given the option to freely refuse consent. Virtually every user would always be clicking on "I don't accept", every time everywhere, so lots of business models would be totally disrupted. By the way, as of now, the cookie bar of this community (stackexchange) does not comply with GDPR either. To tell you the truth, I'm afraid very few websites have a GDPR compliant cookie notice.
Under European rules (GDPR, ePrivacy), you only need consent here if you both access or store information on the user's device (such as cookies), and this access/storage is not strictly necessary for a service explicitly requested by the user. A session cookie is strictly necessary for providing a log-in functionality, so such cookies are unlikely to require consent. In contrast, cookies for measuring ad impressions are not strictly necessary for showing the website content. Necessity must always be thought from the user's perspective, not from the provider's economic needs. If you use one cookie for multiple purposes, you should analyze each purpose separately. Maybe setting a cookie does not require consent under one purpose, but accessing the same information for a different purpose could require consent. If you have to ask for consent, this consent must be in line with the GDPR's requirements in Art 7. Consent must be freely given, i.e. there must actually be a way to decline the consent without suffering detriment. Consent must be informed, i.e. the user must be told directly for what consent is being sought, without having to click through to a long privacy policy. Consent must be specific, so it must be possible to consent for one purpose while declining consent for another. An &quot;I agree to the terms of service and privacy policy&quot; checkbox cannot constitute valid GDPR consent because it fails all these criteria: I cannot use the service without agreeing, I'm not told essential information up front (you cannot expect users to actually read long privacy policies), and this is an all-or-nothing bundle that does not allow specific choices. If you do not have to ask for consent, you should still be transparent about your use of cookies, for example by providing a paragraph on this topic in your privacy notice. I think showing a cookie banner would be a bad idea in that scenario, since it could be confused with an invalid consent banner (no way to decline the cookies).
I spent a few years working in and around the Energy industry - including a stint working at a supplier, I'm no longer there so unfortunately I no longer have access to the email chains I had discussing this with legal. The consensus at the time was that a "traditional" i.e. non-half-hourly (NHH), non-smart meter reading itself was not considered personal data - they are conceptually tied to a metering point (which may or may not be a physical meter), not to an individual and don't represent an individual's energy consumption (the granularity of the reading is insufficient to tell anything about the usage profile) But this information, while all around the implementation of GDPR it was a couple of years back and to be honest it was bugging me that I might be out-of-date on the current practices so I reached out to a former colleague who was the Data Protection Officer at the supplier I worked at to try and get a more up-to-date take. He's since moved on but was there until recently so has more experience with the topic since GDPR actually went into effect. I asked him whether a) estimated opening reads were considered "personal data" and b) what would happen with a request to change one under article 16 and he had this to say, I've translated industry-speak in square brackets: a) for NHH ["Non Half Hourly" - meters that are read ad-hoc, essentially all non-smart domestic meters will be this] an estimated reading wasn't personal data automatically until the billing flag was set in CRM and those would be the only ones we'd include on an SAR [Subject Access Request], any others are internal data not personal. HH ["Half Hourly" - meters for higher consumption users, typically larger business premises are billed on increments for each half hour so have readings for each] and remote [smart meter] readings are always personal for domestic and microb [micro-businesses are a certain class of non-domestic energy customer see condition 7A] b) erm no! we'd only change it if the value in CRM didn't match the value in the D10 [industry Data Flow used to transmit meter reads] for some reason. if they match it's an accurate representation of what we estimate the reading to be so it's just a vanilla billing dispute not a data protection issue so i'd have punted it to [name of person who was head of metering] From that it would sound as though the estimated read would count as personal data - so long as it's being used for billing purposes, but that doesn't mean they have to accept your read in it's stead. It all comes down to accuracy - GDPR requires that personal data be "accurate" but provides no definition as to what "accurate" means (which makes sense since you can't give a one-size-fits-all answer that isn't an encyclopedia) and while The Electricity Directive 2019 confirms the need for accuracy in billing again it doesn't tell us what that means. The implementation is left to member state regulators. In the UK this is OFGEM and all opening meter readings are validated through third parties (so you don't end up with the foxes guarding the hen house!) and are calculated using the following formula: Last validated reading for the meter point &lt;= supplied reading &lt;= (expected daily usage x number of days since last validated reading x 2.5) where "expected daily usage" is obtained from a database maintained by the regulator - it's calculated off meter type, property type, property use, previous validated reads etc. So if the customer provides a reading that falls outside the above the supplier can (and in practice invariably will) reject it as being inaccurate. Now this is why the when a meter reading is provided matters - reads you provide are always assumed to be the read on the day you give them. With opening reads there's some leeway, I can't remember the official rule on how much but usually they give you up to the next estimated read is generated but more on that later. Now if the reading you're trying to submit is a "now" reading and it's failed the validation criteria and you aren't happy with the rejection you can force the issue by demanding the supplier come read the meter. You don't say how long has passed since the opening read - more than the week from what you've said so presumably at least a month (guessing you've had at least your first bill). Now if they are saying the opening read was X (based on the estimated usage) and you're it should have been X + Y and the current reading is X + Y + Z you want to pay your actual usage Z not Y + Z. What you need to do is dispute the opening read, which you're entitled to do, arguably GDPR of Article 16 gives you this right, but on it's own it's a weak argument. There's established means by which an estimated read's "accuracy" is determined and assuming they followed that they're going to just tell you that as far as they are concerned it is accurate. Any challenge to that accuracy is going to have to be done within the legal/regulatory frameworks for assessing accuracy, that's what they're there for, if they won't accept your reading escalate that to the regulator - and as soon as you can. OFGEM for example allow disputing of opening reads for 12 months - it doesn't have to be resolved within that 12 months it just has to be lodged with them within that time. If you try and use the GDPR angle to pursue this IMHO it's going to muddy the waters and not help you get what you need - pursue this on billing accuracy.
Yes. Article 4 GDPR Definitions (1) ‘personal data’ means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person; Recital 26 Not applicable to anonymous data The principles of data protection should apply to any information concerning an identified or identifiable natural person. Personal data which have undergone pseudonymisation, which could be attributed to a natural person by the use of additional information should be considered to be information on an identifiable natural person. To determine whether a natural person is identifiable, account should be taken of all the means reasonably likely to be used, such as singling out, either by the controller or by another person to identify the natural person directly or indirectly. To ascertain whether means are reasonably likely to be used to identify the natural person, account should be taken of all objective factors, such as the costs of and the amount of time required for identification, taking into consideration the available technology at the time of the processing and technological developments. The principles of data protection should therefore not apply to anonymous information, namely information which does not relate to an identified or identifiable natural person or to personal data rendered anonymous in such a manner that the data subject is not or no longer identifiable. This Regulation does not therefore concern the processing of such anonymous information, including for statistical or research purposes.
This is clearly personal information (PI) , and indeed personally identifiable information (PII). and so is Personal Data under the GDPR. Under Article 6 of the GDPR any processing must have a lawful basis. There are 6 possible bases. The most likely ones here would be (a) consent, or (f) legitimate interst, but the private association may claim some other basis as well. They should tell you what basis or bases justify their processing of this information, which includes storing it and publishing it. Under Article 13, Paragraph 1(c) the association should have informed you of the purposes for which information was collected when it was first collected. Under Article 15 paragraph 1 you are entitled to request and obtain from the association (or any other Data Controller) a statement of what PI about you they hold. along with this they must supply various other information including; (a) the purposes of the processing; (b)the categories of personal data concerned; (c) the recipients or categories of recipient to whom the personal data have been or will be disclosed, in particular recipients in third countries or international organisations; (d) where possible, the envisaged period for which the personal data will be stored, or, if not possible, the criteria used to determine that period; (e) the existence of the right to request from the controller rectification or erasure of personal data or restriction of processing of personal data concerning the data subject or to object to such processing; (f) the right to lodge a complaint with a supervisory authority; and other specified information. Article 17 paragraph 1 provides that: The data subject shall have the right to obtain from the controller the erasure of personal data concerning him or her without undue delay and the controller shall have the obligation to erase personal data without undue delay ... if one the the specified conditions applies, particularly: 1(b) the data subject withdraws consent on which the processing is based according to point (a) of Article 6(1), or point (a) of Article 9(2), and where there is no other legal ground for the processing; 1(c) the data subject objects to the processing pursuant to Article 21(1) and there are no overriding legitimate grounds for the processing, or the data subject objects to the processing pursuant to Article 21(2) Article 21 paragraph 1 provides that: The data subject shall have the right to object, on grounds relating to his or her particular situation, at any time to processing of personal data concerning him or her which is based on point (e) or (f) of Article 6(1), including profiling based on those provisions. The controller shall no longer process the personal data unless the controller demonstrates compelling legitimate grounds for the processing which override the interests, rights and freedoms of the data subject or for the establishment, exercise or defence of legal claims. Thus I would suggest that you send a written communication to the association, stating that you: Request access to all PI which they have about you, as permitted by GDPR article 15 paragraph 1; Request that they delete any such information from the public website and any other publications, as permitted by GDPR article 17 paragraph 1; State that you object to further processing of this information under GDPR article 21 paragraph 1; Request information on the name and contact info of the relevant supervisory authority under GDPR article 15 paragraph 1; State that you expect these requests to be complied with promptly, in no event later than 30 days. Mention your prior request for the public info to be deleted, and that several months have already elapsed. Give the exact date of the prior request. I would suggest sending these requests, together in a single email, specifically mentioning the relevant GDPR provisions. I would suggest sending a copy of this by registered mail, and retaining a copy, along with the identifying number of the registered letter. In the letter, mention the email. If the association does not promptly respond in a way you consider satisfactory, you may wish to file a complaint with the relevant data protection supervisory authority. You may also wish to consult a lawyer with experience in this area to determine if you have any legal recourse if the association does not comply.
The point of privacy laws is to set basic standards that apply to everyone, whether or not they have a privacy policy. A privacy policy that is inconsistent with privacy laws cannot be enforced. Breaches of privacy law can be punished even if the conduct is permitted by a privacy policy. Article 7 of the GDPR illustrates this by making special provision for the nature of &quot;consent&quot; to the processing of personal data. Consent must be freely given, and a &quot;written declaration&quot; as to consent, like the acceptance of a privacy policy, &quot;shall not be binding&quot; to the extent that it infringes the GDPR. The $5 billion penalty obtained by the FTC in United States v. Facebook, Inc (19-cv-2184) demonstrates that privacy laws can have a practical impact when a service provider &quot;subvert[s] users’ privacy choices to serve its own business interests.&quot; Facebook was penalised even though its users agreed to Facebook sharing &quot;information about the App User and the App User’s Facebook Friends&quot; with third-party developers. Whether a service provider has breached privacy law is a complex, fact-specific question, but if the service is &quot;pretty much part of people's lives,&quot; that will generally affect both the application of privacy law and the likelihood of an investigation by the regulators.