How GDPR Is Failing

The French data regulator has, in some ways, sidestepped the international GDPR process by directly pursuing companies’ use of cookies. Despite common beliefs, annoying cookie pop-ups don’t come from GDPR—they’re governed by the EU’s separate E-Privacy law, and the French regulator has taken advantage of this. Marie-Laure Denis, the head of French regulator CNIL, has hit Google, Amazon, and Facebook with hefty fines for bad cookie practices. Perhaps more importantly, it has forced companies to change their behavior. Google is altering its cookie banners across the whole of Europe following the French enforcement.

“We are starting to see really concrete changes to the digital ecosystems and evolution of practices, which is really what we are looking [for],” Denis says. She explains that CNIL will next look at data collection by mobile apps under the E-Privacy law, and cloud data transfers under GDPR. The cookie enforcement effort wasn’t to avoid GDPR’s protracted process, but it was more efficient, Denis says. “We still believe in the GDPR enforcement mechanism, but we need to make it work better—and quicker.”

In the last year, there have been growing calls to change how GDPR works. “Enforcement should be more centralized for big affairs,” Viviane Redding, the politician who proposed GDPR back in 2012, said of the data law in May last year. The calls have come as Europe passed its next two big pieces of digital regulation: the Digital Services Act and the Digital Markets Act. The laws, which focus on competition and internet safety, handle enforcement differently from GDPR; in some instances, the European Commission will investigate Big Tech companies. The move is a nod to the fact that GDPR enforcement may not have been as smooth as politicians would have liked.

There appears to be little appetite to reopen GDPR itself; however, smaller tweaks could help improve enforcement. At a recent meeting of data regulators held by the European Data Protection Board, a body that exists to guide regulators, countries agreed that some international cases will work to fixed deadlines and timelines and said they would try to “join forces” on some investigations. Norway’s Judin says the move is positive but questions how effective it will be in practice.

Massé, from Access Now, says a small amendment to GDPR could significantly address some of the biggest current enforcement problems. Legislation could ensure data protection authorities handle complaints in the same way (including using the same forms), explicitly lay out how the one-stop-shop should work, and make sure that procedures in individual countries are the same, Massé says. In short, it could clarify how GDPR enforcement should be handled by every country.

The view is also shared by data regulators, at least to some degree. France’s Denis says regulators should share more information, more quickly on cross-border cases so they can build up an informal consensus around a potential decision. “The Commission could also, for example, look at resources given to data protection authorities,” Denis says. “Because it’s a member state’s obligation to give sufficient resources to data protection authorities to carry out their duties.” The staff and resources regulators have to investigate and enforce is dwarfed by those of Big Tech.

“Potentially, if there was the possibility for some kind of an instrument specific to the GDPR—being a legal instrument—that would specify certain process and procedural issues, that might assist,” Ireland’s Dixon says. She adds that complications that could be ironed out include issues around access to files during investigations, whether those making the complaints are given access to the investigation process, and problems in translations. “There’s a whole range of inconsistencies around that, giving rise to delays and dissatisfaction on all sides,” Dixon says.

Without some changes—and strong enforcement—civil society groups warn that GDPR could fail to stop the worst practices of Big Tech companies and improve people’s sense of privacy. “The immediate thing that needs to be addressed is the Big Tech firms,” Ryan says. “If we cannot deal with Big Tech, we will create a permanence to the fatalism that people feel about privacy and data.” Four years in, Massé says she still has hope for GDPR enforcement. “It’s really not what we had hoped for. But it’s also not in a place that I think we can start digging a grave for the GDPR and forget about it.”

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