Can liability for data disclosure be waived by T&amp;Cs under GDPR? I live in Ireland, an EU county subject to the GDPR. I see in a service T&amp;Cs the line: "Despite our use of commercially reasonable efforts to protect your Personal Information from unauthorized access or disclosure, the Internet is not an inherently secure environment and so we cannot guarantee the security of your Personal Information. We assume no liability for any disclosure of data due to errors in transmission, unauthorized third party access or other acts of third parties, or acts or omissions beyond our reasonable control." Is this legal? Or does "beyond our reasonable control" render this merely subjective?
GDPR defines the responsibility of Companies to ensure that Personal Data in their possession is maintained Secure ensuring Confidentiality and Privacy towards the Data Subjects to whom it pertains. Prior to the Articles themselves, there are notes and over (49) one may read that companies must have in place (where applicable) mechanisms like CERT and any other SECURITY assuring tools/ processes. (83) again is all about ensuring Security. (94) reads that if the Controller (company) find it cannot ensure Security it must stop processing activities and report to the Supervisory Authority for guidance and support. Then we have Article 3 (f) establishing that it is the company responsibility to "... ensures appropriate security of the personal data, including protection against unauthorized or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organizational measures (‘integrity and confidentiality’)..." Bottom line... T&amp;C Companies must ensure that Personal Data is processed by them (and that includes communications) are Secure while ensuring Confidentiality and Pricavy towards the Data Subjects. The wording "...commercially reasonable efforts..." is wrong, because it is not something that may be a legal requirement or not depending on "cost"; it is a Legal Obligation. Then "... the Internet is not an inherently secure environment and so we cannot guarantee the security of your Personal Information..."; this is just "poor legal advice" for GDPR does expect companies to make the Internet safe, it expects companies to maintain their IT Landscape safe... an analogy can be made about going through a group of sharks in the ocean while just swimming or on board of a big boat... the ocean is dangerous due to the sharks, yet if you are in a big boat, you won't even notice them. Then the "cherry on top"; "... e assume no liability for any disclosure of data due to errors in transmission, unauthorized third-party access or other acts of third parties, or acts or omissions beyond our reasonable control..."; now i really do not know which lawyer has written this, but it basically reads something like: "the law obliges me to ensure you are safe... however I am not able to". Now, I have seen similar "statements", but I must confess it was like 2 or 3 years ago... most companies have corrected them over time and since they become aware that penalties were for real. Just a final disclaimer It is a fact that while in transit (over the Internet) a message being delivered through a T&amp;C Company Services will travel through 3rd party infrastructure contexts, rendering it at risk ... however, if it is properly encrypted (as it should) the transition time will not be sufficient for a successful breach attempt. So, yes they are capable of ensuring all they have stated they can not.
The critical part is the nature of the relationship between you, the website provider, and the provider of the material you embed. If the embed-provider acts as your data processor, then things are generally fine. The GDPR does not really distinguish between personal data processing activities that you perform yourself versus activities that you've outsourced to third parties. However, you would remain responsible for compliance. This also means that per Art 28 GDPR, you will need a contract with that embed-provider (sometimes called a “Data Processing Agreement”, DPA). This contract stipulates that the processor will only use the personal data as instructed by you, but not for their own purposes. With the Google Fonts case, it must be highlighted that Google does not act as a processor for this service. Google does not offer a DPA that covers the Fonts CDN. While Google promises that it doesn't use the personal data collected in this context in any nefarious way, there are zero contractual guarantees for website providers. So we have to consider the scenario when the embed-provider is an independent data controller. We as the website provider have no control over what the embed-provider does with the collected data, our control only extends to whether or not we cause the website to disclose data to that third party. But this is still processing as personal data (see also the CJEU Fashion ID case), and we need a legal basis for this data sharing. In the Google Fonts case, the court in Munich found that there was no legal basis for using Google's CDN. There was no consent, no contractual necessity, and no necessity for a legitimate interest. After all, these fonts could all be self-hosted. (Technical remark: and given how modern browsers enforce cache isolation and provide HTTP/2, serving fonts from your main domain is probably faster anyway). Consent management services will typically act as your data processor. You don't need a legal basis for “sharing” data with them, because the processing remains under your control. As far as the GDPR is concerned, loading a script from your processor's servers is equivalent to loading a script from your own servers (which you're probably hosting via a another data processor anyway). Sometimes, the necessary data processing agreement is already part of the standard terms of service, sometimes it's a separate document that has to be signed. Figuring this out is your responsibility as the data controller, before deploying the service. Art 6 GDPR doesn't say that you always need consent. It says that you need a legal basis, for which paragraph 1 enumerates six choices. For a lot of use cases, a “legitimate interest” will be appropriate, though it requires a balancing test. Sometimes, other laws mandate that you use a particular legal basis. For example, the ePrivacy Directive says that you must get GDPR-consent when accessing or storing information on the user's device (such as cookies), unless that access/storage is strictly necessary to provide a service explicitly requested by the user.
These documents constitute personal data and - in principle - you, as the subject, have the right to get a copy of them by issuing a "subject access request". The controller shall provide a copy of the personal data undergoing processing. For any further copies requested by the data subject, the controller may charge a reasonable fee based on administrative costs. Where the data subject makes the request by electronic means, and unless otherwise requested by the data subject, the information shall be provided in a commonly used electronic form. (Art. 15 (3) GDPR) GDPR applies to controllers of any kind, including government organisations. The subject access request can usually be a simple email. The ICO has a template for this: https://ico.org.uk/your-data-matters/your-right-of-access/ (but keep it simple, you can literally just ask for "all personal data" they have on you; no need to speculate on what kind of data they may have). The subject access request is sent to the actual controller, but if you don't get a response to your request after 30 days, you can file a complaint with the supervisory authority (see here for Germany; note that federal institutions are supervised by the BFDI, not the data protection authorities of the Länder). Also note that you may have to go through some trouble to be properly authenticated by the controller. They do need to be certain that you are the data subject. There are also reasons why a controller can refuse to provide some or all of the information (e.g. if your request is clearly excessive or unfounded, if it's impossible to comply without violating another data subject's rights), but I would be surprised if any of those applied in your case. Your rights can also be restricted depending on the legal basis for processing. This includes rights that are illogical as well as some that provide special protection for processors: You can't object to processing based on consent (but you can revoke your consent), fulfilment of contract (but you can cancel your contract), a legal obligation on the part of the processor, or a vital interest (but you still have the right to erasure) Your right to portability and right to erasure does not apply if processing is based on a legal obligation or a public task (justice, parliamentary or government functions, statutory functions etc.) your right to portability also doesn't apply if processing is based on vital interest (e.g to protect someone's life) or legitimate interest of the processor. It is possible that processing all or some of your data was based on the performance of a public task, in which case they will refuse your request.
From a German perspective, it would be absolutely normal and expected that you're providing identity &amp; contact information publicly. Per §5 TMG (Impressumspflicht / Anbieterkennzeichnung) this is required for German tele-media offerings, such as websites or email providers, even if non-commercial. Whereas for you as an upstanding and diligent email provider an abuse@... address should be enough, the German context expects a street address where you could be served with a lawsuit… There absolutely are privacy and free speech issues with this compelled self-doxxing. But by running an email service, you're not just acting as a private person. Your privacy interests and the transparency and security interests of other people have to be balanced. Now since you are not in Germany, the TMG does not apply to you. You have no legal obligation to provide this information. However, the ISP also has no legal obligation to to deliver your email. The ISP does have an obligation to apply appropriate organizational and technical safety measures. It seems that one organizational measure they have found appropriate is that they will only deliver emails from providers that provide public contact information, as would be the norm in Germany. I am not entirely sure how the GDPR applies here. The GDPR doesn't really allow or prohibit disclosures of personal data, it just requires that every purpose of processing for personal data has a legal bases per GDPR Art 6. One such legal basis is a legitimate interest, which boils down to a balancing test between your rights and freedoms and other people's interests. I'm also not sure if the contact information should be classified as personal data in this context, because the contact info primarily relates to your role as an email provider. I'm also not sure if the ISP is processing your personal data in the sense of the GDPR when they merely require you to publish it on your own site. They would be processing it as soon as they scrape, store, or otherwise use this info.
No. As long as you don't see and have no means to access this data, but it is under the control of the user at all times, you are neither the controller or the processor of this personal data, and the GDPR does not apply to you.
This is possibly but not necessarily fine. The data controller (the garage) is responsible for safeguarding your personal data. They must take appropriate safety measures, but this depends a lot on their own risk assessment. For example, to protect the data from being used by employees for their personal purposes, the controller might use organizational measures like a policy “you're not allowed to do that.” Many companies allow employees to use their personal devices for work purposes (BYOD). When the data controller allows this and takes appropriate safety measures, everything is perfectly fine. The company still has to make sure that the data is only processed for legal purses and deleted afterwards. Implementing a BYOD policy in a GDPR compliant manner is difficult but not impossible. A data breach has occurred when the security measures were insufficient and your data was deleted or disclosed without authorization. Your scenario would only be a breach if the company did not have a BYOD policy and the salesman used their personal phone, and arguably then only if that device is also breached. However, do not discount the alternatives: they do have a BYOD policy and the salesman is acting within their instructions the salesman was using a company-controlled device, not their personal phone If you have good reason to believe that your data was mishandled (and these alternatives do not apply), then the GDPR offers you the following remedies: You can of course complain to the data controller, especially if they have a dedicated data protection officer. You can lodge a complaint with a supervision authority, which is the ICO in the UK. They expect you to attempt to resolve your issue with the controller first. The ICO can then decide if they want to investigate the issue. You can sue them for compliance and for actual damages suffered (you have none, though). Note that all of these alternatives are more effort than they are likely worth. In particular, the garage can always correct the problem, e.g. by getting your contact info deleted from the personal device or by creating a retroactive BYOD policy.
Yes, but it doesn't matter. This answer discusses gdpr implications. Personal data is any information that relates to an identifiable person. The GDPR has an extremely broad concept of identifiability, also covering indirect identification using additional information and with the help of third parties. Even just being able to single out one data subject, i.e. being able to distinguish different users from another, counts as identification. If you already have a concept of user accounts, any information that is linked with the user accounts and somehow relates to those users would also be personal data. Since you have distinct push tokens per user, it seems like this criterion would be met. Additionally, those unique tokens might be directly identifying by themselves. The GDPR does not allow for semantic games like “it only identifies the device, not the user”. The key here is that the definition of identifiability does not hinge on your intentions, but on objective capabilities: if you or someone else who can come into possession of this data were to attempt to identify the user (such as singling out users from another), would they be reasonably likely able to do that? Since most devices are single-user, being able to identify a device would imply that you're reasonably likely to also identify users. Just because something is personal data doesn't mean you're forbidden from using that data. It means that you'd have to comply with GDPR rules, if you're otherwise within scope of that regulation (e.g. if you're EU/UK-based, or are targeting your services to people who are in UK/EU). For example, basic GDPR compliance steps include having a clear legal basis for your processing of personal data (such as necessity for performing a contract to which the data subject is party, or necessity for a legitimate interest, or consent), providing a privacy notice, and taking appropriate technical and organizational measures (TOMs) to ensure the compliance and security of processing. For example, TOMs regarding these push tokens could involve encryption, access controls, and a plan for installing security patches in order to prevent data breaches. Using push tokens is already a good measure in this context, since they are effectively pseudonymous and prevent linking additional information via that token (two sites/apps pushing notifications to the same person will have entirely different tokens). However, the push notification provider (e.g. Google, Apple, Mozilla) can resolve the pseudonymous tokens and link them to a person, indicating that these tokens are ultimately identifying (even if you can't perform that linking yourself). Note that if GDPR applies, then other EU/UK rules might apply as well. For example, sending electronic messages (such as emails) is subject to anti-spam rules (EU: ePrivacy, UK: PECR). These rules apply regardless of whether personal data is involved. Since the rules are not technology-specific, it is likely that regulators would consider user-visible push notifications to be equivalent to more well understood technologies like email and SMS.
Since you are from Europe, GDPR applies to all your processing activities per Art 3(1) GDPR, regardless of where the users are located. If you would like to avoid GDPR compliance, you would have to manage your business from abroad so that you no longer have an European establishment, and would have to avoid offering your services to people who are in Europe. So let's assume that you have no European establishment. Then, GDPR can only apply per Art 3(2) to those processing activities that relate to offering goods or services to people who are in Europe. For determining this, IP-based geolocation is indeed common. Very likely, you do not need consent for this. GDPR does not require consent for everything, just a legal basis. There are six potential legal bases in Art 6(1), though the relevant ones are consent, necessity for performing a contract, legal obligations, and necessity for a legitimate interest. For things like security checks, it would be common to claim a legitimate interest. Complying with GDPR can hurt revenue. However, data subjects have a right to data protection, but you do not have a right to a particular business model. Similarly, paying taxes can &quot;hurt revenue&quot;, but it's not really optional. If your business model can't deal with GDPR compliance (or with taxes), it might not be a sound business model. In Europe, many newspapers have since moved from advertising-only to a consent-or-pay model. That is, the user is given a choice: You can read articles without tracking if you buy a subscription. You can access articles for free if you consent to tracking. The legality of this is hotly debated. In principle, such an approach can be compliant, but the details are problematic, for example that you can only buy subscriptions rather than individual articles, and that these subscriptions are often orders of magnitude more expensive than what would be earned through ads. But this might actually be easier to solve for a mobile application than for a website, due to the availability of in-app payment and micropayment infrastructure. In any case, GDPR limits how much you can &quot;encourage&quot; consent – per Art 7(4), you cannot make access to your service conditional on consent. There must be a way to use your app without consenting to anything, unless that consent is actually necessary for the app to work. For example, consenting to camera access is necessary for a QR code reader app to work. It is extremely unlikely that ads would be necessary in this sense. Users also must not suffer detriment for declining or withdrawing consent. From this, the EDPB has developed the concept of &quot;permissible incentive&quot; in their guidelines on consent. In this post, &quot;Europe&quot; means EU/EEA/UK as appropriate.