Does GDPR Prohibit Reading Unsolicited Emails? I originally asked this question on Information Security and it was suggested it was a better fit over here. I'm a member of the management committee of an allotment society in the UK. The committee maintains a list of society members' email addresses to keep in contact with them. Before GDPR started on the 25th of May this year an email was sent to all members on this list asking them to opt in to future communications. Most members replied positively. At a meeting last night, the Secretary of the committee said that she had received emails from members who had not opted in advising of health and safety issues on the site. She said the National Allotment Society's policy was that these emails could not even be read because of GDPR. She added that an email was then sent to the original sender advising of this. I have looked what GDPR says about emails and it seems to concentrate on not sending unsolicited emails and making sure that an organisation has explicit consent to store data. From what I understand we have a lawful reason to process this email but we do not have explicit consent for anything. My question is this: does GDPR prohibit reading unsolicited emails from people who have not explicitly opted in to a mailing list?
Does GDPR prohibit reading unsolicited emails from people who have not explicitly opted in to a mailing list? tl;dr: No. I have never heard of this, and I don't see how this could follow from the GDPR. You should follow up with the Secretary to find out how she came to her conclusion. Detailed reasoning: The GDPR restricts the processing of personal data, so it does in principle cover reading email, since reading counts as "processing", and an email may contain personal data. However, Article 2 (emphasis mine) says that: This Regulation applies to the processing of personal data wholly or partly by automated means and to the processing other than by automated means of personal data which form part of a filing system or are intended to form part of a filing system. I would read this to mean that a human reading emails is only covered by GDPR if the emails are part of a "filing system" or intended to be. So reading the emails is ok, it's only problematic if you intend to systematically store them. Even filing them, while covered by GDPR, would presumably be allowed, because to actually act on the email, you would have to keep it, and Article 6 allows processing of personal data to "take steps at the request of the data subject prior to entering into a contract" and when "processing is necessary for the purposes of the legitimate interests pursued by the controller". One caveat: If the email contains data that falls under special categories of personal data (Article 9) you may need explicit consent for storage. That covers things like racial or ethnic origin, political opinions, religious beliefs and health information. So if someone discloses a health problem or their religious belief in their mail, you may need to ask them for permission to keep it. In summary: At most, GDPR would require you to promptly delete the email once you no longer need it (which could be immediately if the email is irrelevant to you). If the email contains data you legitimately need (e.g. a complaint you need to follow up on), you are allowed to keep it as required (based on Article 6 (f)). Note that in both cases no explicit consent is required from the email sender, unless the email contains particularly sensitive data, such as political/religious beliefs or health data.
GDPR does not cease to apply because of the location of data storage. It applies based on the location of the data processor, data controller, and data subject. If you are in the EU, you are a data subject covered by GDPR. It does not matter where the data are stored. Note that you are asked to confirm that you're aware that US laws may be less protective, but you're not asked to acknowledge that anything about the arrangement causes the "laws of your country/region" not to apply. The company also does not seem to be claiming that they don't apply, although it seems that they want you to think so, and it's not clear whether they think so. You are correct that GDPR doesn't allow its protections to be waived. A data subject may always consent to certain processing, and some processing may be performed without consent, but it's not possible to waive the right to withhold consent for processing that does require it.
Your confusion might be caused by the fact that even with a contract, only the data necessary for that contract is covered under the GDPR. So yes, while there might be an &quot;execution of contract&quot; under the T&amp;C, this would only cover necessary data. That means you can't ask arbitrary signup data under the guise of a contract. If you need to deliver a physical product, you can store a physical address. If it's an online service, you can store an email address or similar handle. But you can't mix the two. A physical address is unnecessary for the execution of a contract that's not physical in nature. Now, you mention &quot;consent&quot;. Under GDPR, this is a distinct justification besides &quot;execution of contract&quot;. You might have consent to store a physical address in addition to an online address, e.g. if you offer a customer to physically mail a password request form. This consent is additional to the contract. Also note that the bit above only covers the lawful reasons for the processing of personal data (article 6). You also have to obey the other GDPR rules, e.g. fully inform the user, make sure that consent is freely given, etc.
Yes, there would still be an obligation to comply with erasure requests – if the data subject can be identified, and if the GDPR applies. This is a case for Art 11 GDPR: processing which does not require identification. The pastebin site is not required to collect identifying info just in order to facilitate later deletion. If the site is unable to identify the data subjects, then the data subject rights (like access, rectification, erasure, restriction, or data portability) do not apply. Other rights like the right to be informed and the right to object do remain, though. But if the data subject provides sufficient additional information that makes it possible to identify their records, then the data subject rights apply again. In practice, this is likely going to mean that anyone with access to a paste will be able to request deletion, since the site would have no ability to verify the identity of the data subject beyond the information in the paste. None of this absolves the site from implementing appropriate technical and organizational measures to ensure the security of this data. Even though the pastes might not be directly identifying, they are personal data and are far from anonymous. Common practices like numbering pastes with a sequential ID or showing recent pastes on a homepage have to be viewed critically. My go-to recommendation is to assign a cryptographically random UUIDv4 ID to the post, so that it is practically impossible for anyone to find the paste unless they were given a link by the uploader. Your idea to delete pastes after a fairly short retention period is also good. This helps with security, and it is in line with the GDPR's data minimization and storage limitation principles: data may only be kept as long as necessary for its purpose. On the other hand, quick deletion might not be in line with the purpose of these pastes – it all depends on context. You mention that this is an US-based site. If so, there's a question whether GDPR would even apply. GDPR will apply per Art 3(2) if the data controller is offering its services to people who are in Europe. Here, “offering” does not mean mere availability of the website, but that the data controller intends the service to be used by such people, in particular if the service is somehow targeted or marketed to such people.
If you are purely a designer (and not contracted for the daily operation of the site), the answer is "no". GDPR Article 4 defines the "roles" responsible for complying with GDPR, and there are two: Controller and Processor. The Controller is the one who calls the shots. In particular: Decides what personal data to process. This is usually the owner of the web site. The Processor is the one that actually does the processing. This is usually some company providing some sort of data processing service (e.g. SaaS, PaaS, etc.). The relationship between the Processor and the Controller must be contractual. The contract is called a DPA (Data Protection Agreement or Data Processing Addendum). As a designer, you don't fit into any of these roles. If your contract with the client is silent on liability for GDPR compliance, then you have no liability. This goes for projects completed both before and after the May 25 deadline. Of course, if there are GDPR clauses in your contract, then you must fulfil them just as have to fulfil any other contractual obligation. But unlike the controller and the processor, there are no automatic legal liability for a designer or programmer.
The basic requirements for the effectiveness of valid legal consent are defined in Article 7 of the GDPR and specified further in Recital 32. There is no form requirement for the consent, so using a button is not a problem. However, I do not think the MailChimp-button you reproduce as an example is good enough. It asks for a blanket consent to stuff that is buried in MailChimp's “Anti-spam Policy &amp; Terms of Use”. But according to the GDPR, what the data subject consent to can’t be buried in the ToU – it must spelled out in clear, plain language. Requests must be granular, asking for separate consent for separate types of processing. “When the processing has multiple purposes, consent should be given for all of them” (Recital 32). Blanket consent, as used by MailChimp, is not allowed. The other clear requirement from the GDPR is that opt-in is mandatory. Pre-ticked and opt-out buttons are explicitly banned: “Silence, pre-ticked boxes or inactivity should not therefore constitute consent” (Recital 32). ‘No’ must become your data default, but if the user chooses to opt-in by clicking a button, this is valid consent. The MailChimp-button complies witrh this. The GDPR also requires you to keep a records of the consents given (so make that part of the user profile), and to withdraw consent at any time &ndash; so you make make provisions for that as well in your implementation of consent.
You could, but how should the companies that want to handle your data know this? If they have no affirmation from you that you allow them to process your data in any way, other than those they are already allowed to because of the exceptions, they have to - under GDPR - assume you don't want them to process your data, and thus have to ask you.
The Facebook Pixel analytics solution does not seem to support access or erasure for data subjects. While there are some GDPR compliance features, these focus on collecting consent prior to collecting data. The relationship between the pixel user and Facebook is also murky. For certain kinds of data, Facebook acts as the data processor only, and the user has all the responsibility as the data controller. For other kinds of data, Facebook and the Pixel user are joint controllers, and therefore jointly responsible. This lack of features doesn't necessarily mean that Facebook Pixel is in violation of the GDPR, since the GDPR Right to Erasure only applies under certain circumstances. However, it is really difficult to argue that a website or app that integrates Facebook Pixel would be compliant. It is also rather dubious that Facebook could be compliant themselves, since their pixels will also collect data about persons who are not Facebook members. While these problems are most apparent with the Facebook Pixel since it's explicitly intended for tracking, this problem also applies to any other embeds provided by Facebook, such as like buttons. This was the subject of the Fashion ID case, in which the ECJ determined (in 2019) that the site operator is a joint controller with regards to data collection on the website by the Facebook embed. This effectively means that third party embeds can only be loaded after the website visitor has given consent for sharing data with Facebook. The tracking of non-users by Facebook was seen as especially problematic in Belgium, where Facebook had been banned from collecting such data already in 2015 (which was upheld in 2018). Since this was pre-GDPR, FB is currently litigating whether Belgium can continue enforcing their ban. I expect that Belgium will prevail with their ban. While this has no immediate consequences for Pixel users, this would make it more likely that Pixel users could be sued or fined successfully. From an advertiser perspective, Facebook does have valuable data that make the integration of Facebook Pixel an attractive proposition. However, other analytics solutions are much easier to bring into compliance. This is ultimately a business decision: will the better understanding of your ad spend on Facebook outweigh the risk and effort of integrating the Pixel?