Home » Fundamental question clarified, problem solved or even the death knell? – The ECJ on cookies and data protection

Fundamental question clarified, problem solved or even the death knell? – The ECJ on cookies and data protection

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Fundamental question clarified, problem solved or even the death knell?  – The ECJ on cookies and data protection

The current ECJ ruling (Az. C‑604/​22 IAB Europe) commented on the topic of data processing in personalized advertising in the local press.

The conflation of cookies and data protection is often a reason why people still repeat that data protection is to blame for these annoying cookie banners. But more on that later…

What exactly is the ruling about?

As early as 2022, the Belgian data protection authority came to the conclusion that the Transparency and Consent framework (TCF) system, with which the advertising association Interactive Advertising Bureau Europe (IAB) and advertisers on the Internet collect consent from users for their personalized advertising, violates the General Data Protection Regulation.

One component of personalized advertising on the Internet is real-time bidding. To do this, bids are made in real time for advertising space on advertisers’ websites or applications. These advertising spaces are auctioned in order to display advertising that is tailored precisely to the respective users and their preferences.

In order for this to work, the preferences of the respective users must be stored somewhere. This is where the TCF mentioned above, specifically the so-called TC string, comes into play. The TC also stands for here „Trans­pa­ren­cy and Con­sent“. A combination of numbers and letters in which „gespei­chert“ will determine which data processing of their specific personal data the users have consented to and which they have not consented to. IAB Europe shares this TC string with its partners so that they know which advertising they can display in a targeted manner. For this purpose, a cookie is stored on the users’ devices so that it can be assigned which TC string belongs to which users.

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Belgium imposed a fine on IAB Europe

The Belgian Data Protection Authority concluded that this TC string used in combination with the cookie can be assigned to the IP address of the user and therefore constitutes personal data. Furthermore, the authority found that IAB Europe acted as controller but did not fully comply with the GDPR regulations. As a result, the authority imposed various measures and a fine of 250,000 euros.

IAB Europe is fighting back, it’s the ECJ’s turn

The IAB Europe of course defended itself against this, but now the European Court of Justice has ruled and confirmed the decisions of the Belgian supervisory authority. The TC string is to be viewed as personal data and IAB Europe as the joint controller, according to the statement Pres­se­mit­tei­lung of the ECJ.

So it remains exciting, especially how the advertising industry on the Internet will deal with it. So far, IAB Europe has dismissed the ruling as a technical formality, but the classification as a joint controller means liability for IAB Europe, which can result in severe penalties.

Privacy is to blame, as always

But what about the debt of data protection to insufferable cookie banners? As is often the case when it is said that data protection is to blame, it is not data protection. 😉

The “guilt” lies primarily with them ePri­va­cy-Richt­li­nieDirective 2002/58/EC of the European Parliament and of the Council of July 12, 2002 on the processing of personal data and the protection of privacy in electronic communications, which was not called the Cookie Directive for nothing.

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