Shorter Reads

Are Google’s cookies crumbling?

1 minute read

Published 3 June 2020

Authors

Share

Key information

We have grown accustomed to the extraordinary speed and efficiency of the Google search engine and Chrome browser. Many people also welcome the prompts and suggestions for browsing and purchases generated by Google Analytics. For a large number of businesses (including our own), Google Analytics provides useful feedback and analysis on visits to your website. For businesses in all countries signed up to the GDPR, cookie notices should make clear whether or not a business wishes to use Google Analytics, and give individuals the ability to opt in or out.

A growing number of people around the world, however, are wanting to take back control of their personal data. Rather than simply accepting cookies when invited to do so, they are setting preference options which refuse all but essential cookies, or refuse analytical, targeting  and advertising-related cookies.

The GDPR and related directives have strengthened the position of data subjects who wish to limit the amount of their data that cookies collect and share. A recent German court decision has held that using cookies for marketing or market intelligence purposes invariably requires user consent, whether or not the cookies collect personal data. Further, that consent must be given through active confirmation by the user, not pre-ticked boxes. Users must also be given adequate information about what cookies there are and what they do.

There is no federal data protection law in the US that mirrors the provisions of the GDPR. There is a Privacy Shield voluntary scheme for businesses processing data from EU subjects, to minimise the formalities needed for data transfers, but the efficacy of that system is currently being challenged. Individual states have introduced different data protection laws, and the California legislation is arguably the toughest, so far as data collectors are concerned. Given the patchwork nature of US data protection, Google and others have been accused of being slow to adopt ‘best practice’ data privacy measures, perhaps because it would require them to go far beyond the protection available in the majority of states.

Against that background US data subjects who do not wish their data to be mined by Google Analytics seem to have been under the impression that choosing Google’s “Incognito” mode would prevent their personal data being mined by Analytics. Not so, says Google.  Furthermore, the company claims that this is made clear every time a new search tab is opened. Given the dictionary definition of “incognito” is “having one’s true identity concealed”, the choice of name is questionable, at the very least.

A class action has been brought in California where these conflicting views will be tested. The headline compensation being sought is US$5 billion. Not only lawyers, but vigilant data subjects in all walks of life will be watching this case closely to see how this dispute develops and whether a similar class action will be brought in the UK or elsewhere in Europe under the GDPR and related directives. If the case goes against Google, the days of near-universal use of Analytics may be numbered, or at least the nature and extent of the use will need to be made clearer in the US at least. Google will be no doubt hoping that the court decision will offer them some crumbs of comfort.

https://www.bbc.co.uk/news/business-52887340

Related latest updates
PREV NEXT

Arrow Back to Insights

Shorter Reads

Are Google’s cookies crumbling?

Published 3 June 2020

Associated sectors / services

Authors

We have grown accustomed to the extraordinary speed and efficiency of the Google search engine and Chrome browser. Many people also welcome the prompts and suggestions for browsing and purchases generated by Google Analytics. For a large number of businesses (including our own), Google Analytics provides useful feedback and analysis on visits to your website. For businesses in all countries signed up to the GDPR, cookie notices should make clear whether or not a business wishes to use Google Analytics, and give individuals the ability to opt in or out.

A growing number of people around the world, however, are wanting to take back control of their personal data. Rather than simply accepting cookies when invited to do so, they are setting preference options which refuse all but essential cookies, or refuse analytical, targeting  and advertising-related cookies.

The GDPR and related directives have strengthened the position of data subjects who wish to limit the amount of their data that cookies collect and share. A recent German court decision has held that using cookies for marketing or market intelligence purposes invariably requires user consent, whether or not the cookies collect personal data. Further, that consent must be given through active confirmation by the user, not pre-ticked boxes. Users must also be given adequate information about what cookies there are and what they do.

There is no federal data protection law in the US that mirrors the provisions of the GDPR. There is a Privacy Shield voluntary scheme for businesses processing data from EU subjects, to minimise the formalities needed for data transfers, but the efficacy of that system is currently being challenged. Individual states have introduced different data protection laws, and the California legislation is arguably the toughest, so far as data collectors are concerned. Given the patchwork nature of US data protection, Google and others have been accused of being slow to adopt ‘best practice’ data privacy measures, perhaps because it would require them to go far beyond the protection available in the majority of states.

Against that background US data subjects who do not wish their data to be mined by Google Analytics seem to have been under the impression that choosing Google’s “Incognito” mode would prevent their personal data being mined by Analytics. Not so, says Google.  Furthermore, the company claims that this is made clear every time a new search tab is opened. Given the dictionary definition of “incognito” is “having one’s true identity concealed”, the choice of name is questionable, at the very least.

A class action has been brought in California where these conflicting views will be tested. The headline compensation being sought is US$5 billion. Not only lawyers, but vigilant data subjects in all walks of life will be watching this case closely to see how this dispute develops and whether a similar class action will be brought in the UK or elsewhere in Europe under the GDPR and related directives. If the case goes against Google, the days of near-universal use of Analytics may be numbered, or at least the nature and extent of the use will need to be made clearer in the US at least. Google will be no doubt hoping that the court decision will offer them some crumbs of comfort.

https://www.bbc.co.uk/news/business-52887340

Associated sectors / services

Authors

Need some more information? Make an enquiry below.

    Subscribe

    Please add your details and your areas of interest below

    Specialist sectors:

    Legal services:

    Other information:

    Jurisdictions of interest to you (other than UK):

    Article contributor

    Enjoy reading our articles? why not subscribe to notifications so you’ll never miss one?

    Subscribe to our articles

    Message us on WhatsApp (calling not available)

    Please note that Collyer Bristow provides this service during office hours for general information and enquiries only and that no legal or other professional advice will be provided over the WhatsApp platform. Please also note that if you choose to use this platform your personal data is likely to be processed outside the UK and EEA, including in the US. Appropriate legal or other professional opinion should be taken before taking or omitting to take any action in respect of any specific problem. Collyer Bristow LLP accepts no liability for any loss or damage which may arise from reliance on information provided. All information will be deleted immediately upon completion of a conversation.

    I accept Close

    Close
    Scroll up
    ExpandNeed some help?Toggle

    < Back to menu

    I have an issue and need your help

    Scroll to see our A-Z list of expertise

    Get in touch

    Get in touch using our form below.



      Business Close
      Private Wealth Close
      Hot Topics Close