The Complete 2021 Privacy Compliance Checklist Header

Maybe you’re ahead of the pack when it comes to privacy, keeping your privacy policy and data inventory in shipshape. In that case, we salute you! (But you probably also know that privacy compliance obligations are a moving target and you keep planning for the future.)

But for the lot of you working hard at meeting your business goals while also struggling to wrap your head around how to fit privacy compliance onto your to-do list, take heart: 2021 is a great year to take it on. 

Why? Because privacy is about more than just putting systems and technology in place to help track and manage your customers’ personal information. 

It’s about respecting your relationship with customers. It’s about prioritizing the trust that they extend to you when they share their names, emails, phone numbers, addresses, whatever data points you’re asking for. It’s about leading with privacy, whether you’re a multinational corporation or a brand-new startup. 

So what will it take to be a privacy-forward business in 2021? Here’s our list for the upcoming year. 

Wrap up CCPA compliance

We said the same thing last year, but it still applies. CCPA is the most comprehensive, enforceable general data privacy legislation in the US. If you haven’t finished up your CCPA compliance, don’t wait on this. 

So what do you need to know for CCPA? Ready to jump into CCPA compliance? We’re here to help with that. 

Just getting acclimated? See below for your debriefing. 

  1. Do that data inventory. You know that accomplished, on-top-of-your-to-do-list feeling that you get after spring cleaning? That’s how you’ll feel when you organize your data and figure out what you’re collecting, using, storing, sharing, and selling. 
  2. Be transparent with your audience about how you’re collecting personal information. This should include the aforementioned Don’t Sell My Personal Information link on your home page and a crystal clear privacy notice that details your collection practices.
  3. Make individual rights requests easy. Include at least two methods for submitting requests.
  4. Respond to individual rights requests ASAP. Implement a verification method to protect your customers’ personal information. 
  5. Protect minors’ rights via appropriate consents for collecting children’s information
  6. Cover your data security bases—consumers can file civil suits if you don’t take “appropriate security measures” and their data is exposed in a breach.

Getting CCPA compliant in 2021 isn’t just about avoiding the fines, fees, and reputational damage that comes along with compliance failures. It’s also part of preparing for the California Privacy Rights Act (CPRA) compliance in 2023. 

Read more on CPRA here

CPRA is guaranteed to give your business more to think about in terms of privacy. The new legislation, passed in the California general election in November 2020, expands on the core tenants of CCPA and moves privacy obligations closer to GDPR’s requirements (General Data Protection Regulation, EU’s privacy law).  It promises to help make enforcement of compliance more achievable for the state of California. Here are a few of the key features:

  • Grants new rights to data portability, correction, and restricting the use of sensitive personal information 
  • Clarifies definitions of selling information 
  • Raises threshold for personal information processing

But just because CPRA is coming down the road doesn’t mean that CCPA should be disregarded—its rules definitely still apply. 

But pay attention to other laws as well

And I’m not just talking about GDPR. CPRA may be the latest in US privacy law, but other states are edging towards more robust legislation. 

You may remember that last year, we mentioned the Texas Privacy Protection Act, the New York Privacy Act, and the Washington Privacy Act, the latter being back and updated for the third time.  These laws are still in the works, but New Hampshire, Oregon, and Virginia are also joining the party. While the final shape and outcome of legislative efforts is unknown, it’s good to keep your finger on the pulse of these discussions. 

And don’t forget about what’s going on overseas

We’re not just talking about general GDPR requirements. You need to be tracking several developments on the European privacy frontier.

Schrems II ruling

In July, the EU’s Court of Justice struck down the Privacy Shield arrangement, which supported the flow of personal data between the EU and the US. According to the ruling, American organizations weren’t meeting the conditions of providing “adequate” protection for EU residents’ personal data. While a replacement for Privacy Shield is in discussion, there’s not an imminent replacement. That means some fancy footwork may need to take place if you’re going to keep processing EU data. (But it’s worth getting that choreography down.)

Brexit

When January 1, 2021 rolls around, the UK will no longer be part of the EU. For privacy practices, this means that US-based businesses dealing with personal data from the UK will have to accommodate the UK’s equivalent of GDPR. Don’t delay in assessing whether you fall into the scope of their framework. While regulations will be similar, you may need to adjust some internal processes to comply.  

Align your digital marketing strategy with privacy

Digital marketing—especially these days—is critical to connecting you to your audience. But is your digital marketing on the right side of privacy? 

Between the General Data Protection Regulation (GDPR), the ePrivacy Directive, the California Consumer Privacy Act (CCPA), Controlling the Assault of Non-Solicited Pornography And Marketing (CAN-SPAM), Canadian Anti-Spam Legislation (CASL), there’s a lot to weigh across your channels. 

Take email marketing for one. Email marketing is at the top of marketers’ to-do lists: 87% of them use email marketing to distribute content organically. 

That means you’re probably sending out emails. But do you know if you’re: 

  • Representing your message correctly? 
  • Setting up appropriate opt-ins and opt-outs for your recipients? 
  • Sufficiently managing your records? 

Email marketers should be able to answer these questions in the affirmative. But email marketing likely isn’t the only thing on your digital plate. Your website is a major piece of the pie. 

Give your website some love

Your website is a heavy lifter for your marketing efforts—and your compliance ones, too. If you’re a developer, the word “compliance’ likely sparks visions of ADA-accessibility requirements. But your website needs far more than that. For both GDPR and CCPA, you should always make sure that you’re locking down your data with the most up-to-date security practices. You should also make vetting your vendors one of YOUR best practices—how they handle data privacy and security has major implications for your business and customers. 

Here are a few of the other big-ticket items for getting your website compliant in 2021. 

For CCPA:

  • Provide a link from your home page that says “Do Not Sell My Personal Data” 
  • Make sure you get the appropriate consents before collecting personal data belonging to minors
  • Include a method for visitors to request, move, change or delete data 
  • Update your privacy policy to share what personal data you collect, how you use it, third parties data is shared with, data that’s sold and a description of their individual rights as per CCPA

For GDPR:

  • Add a cookie banner so your visitors are informed about your cookie practices and can provide opt-in consent 
  • If you depend on consent for email marketing, make sure you’re getting that consent appropriately (i.e., through opt-ins and/or double opt-ins)
  • Implement a system for notifying users about privacy policy updates or data breaches 
  • Make sure your anonymize data when using third-party services or plugins

Note: This list isn’t exhaustive. For help with GDPR and CCPA compliance, drop us a line—we can help you get moving in the right direction. 

Put together amazing privacy messaging

There’s not a single good, consumer-friendly reason privacy practices can’t be made comprehensible to your customers. That’s it. Short and sweet. You can do it. You need to do it. Because people are over convoluted privacy policies that are as indecipherable as Beowulf

A good start is to finetune your landing pages where you house your privacy and security policies. While B2C businesses might not have a rapt audience, B2B companies will find that customers are hungry to know how you’re complying with privacy laws. 

Part of your messaging strategy should be to help your customers tailor their marketing experience with you. Preference centers give them options of how much communication they want to receive and what type. Need inspiration? Just look at how companies like Monday.com, MailChimp, and Apple craft engaging user experiences that speak directly to their customers’ privacy concerns while staying true to their brand identity. 

Finally, to make integrating privacy into your marketing, a good practice is to have a checklist for the privacy regulations you need to follow. Knowing what the benchmarks are will make everyone’s job a little easier. 

Make privacy a focus at your workplace

To start, in 2021, get your team trained on privacy issues. That in and of itself is a multifaceted thing. It can involve information security awareness or privacy awareness. It can be a deep dive into CCPA individual rights requests, or it can reinforce industry-specific privacy compliance requirements. (Take, for example, the Gramm-Leach-Bliley Act for financial services.)

Your team also needs thorough data security training. After all, human error is responsible for some massive data breaches. And given the large numbers of workers still living the work-from-home life, your team needs to be looped in on all the relevant data security rules. Let’s not repeat the same mistakes in 2021. 

A final word on focusing on privacy in your workplace. Don’t leave internal privacy discussions to the IT crowd or the marketing department. Privacy is pertinent to your entire operation. So when you’re looking down the road at new projects, products, services, vendors, whatever you’re planning on getting up to next year, bring privacy to the table.  

The clock is counting down until 2021. I’m just as excited as everyone for the promise and opportunity of a brand new year. But seizing opportunity means being proactive. Don’t treat compliance as a last-minute addition to the rest of your business activities. 

Ready to get started before the ball drops? We’d love to chat. Drop us a line to schedule a consultation.

If you’re in marketing, email is probably one of your love languages. It’s a major channel of communication, after all.  

But email marketers need to know more about click-through rates and optimizing graphic design for mobile. Marketing privacy laws are setting the tone for consumer expectations in the 2020s. 

In other words, how you approach marketing privacy laws will define your business — not just in terms of your sales funnel, but in establishing your brand as one that treats consumer data with respect. 

Yes, laws across the globe are taking a stronger stance on individual rights and how they pertain to privacy and personal data. But instead of playing Whack-A-Mole with your approach to privacy, here’s a bit of food for thought: prioritizing compliance with the strictest privacy laws may take more work, but you’ll see better results in the long run.

What is email marketing? 

But let’s hold up for a moment. Not all email communications are the same. Some are unreservedly marketing-driven. Others are purely transactional. Depending on what you’re sending, there are different rules that apply to it.  

Marketing emails 

Marketing emails are those sent with a fundamentally commercial intent. This could be an e-blast about a big sale you’re running. Others might be sent to nurture leads within your funnel. These emails are sent to groups of contacts, whether segmented or list-wide.  

Transactional Email

Unlike marketing emails, transactional emails are one-to-one emails following a transaction. The most obvious example is getting an email receipt after purchasing an item, but shipping notifications, password resets, or invoice emails are also examples of them, too. To double down on the definition, transactional emails are sent to individuals, not email lists.  

What privacy laws are we looking at?

At this point, it feels like there are a lot of privacy regulations to track, but let’s simplify things here. For email marketers, there are four key regulations to be aware of. Yes, each one is distinct but there’s some fundamental overlap that will ultimately make compliance easier. 

The General Data Protection Regulation (GDPR)

You can’t talk about privacy laws without talking about GDPR. (Well, it’s not a legal requirement, but we don’t advise skipping it.) GDPR is the EU’s landmark, watershed, groundbreaking privacy regulation. It’s the most extensive one in the world and while it applies specifically to EU residents, it has impacted businesses across the world. 

If you’re targeting EU residents via email, you need to comply with GDPR and also the ePrivacy Directive or as it is known in the UK, the Privacy and Electronic Communications Regulation (PECR). In this section, we’ll focus primarily on GDPR’s requirements. However, it’s important that you also are familiar with the ePrivacy Directive, which has differing rules by country and varies if it’s B2B or B2C marketing.  

As an email marketer under GDPR, you need a lawful basis for emailing people. Lawful basis takes six different forms: consumer consent, contract, legal obligation, legitimate interest, vital interests, and public tasks.

When it comes to reasons for contact, consent is the gold standard. Assuming it’s done right, it means people really, truly want to hear from you. So…how do you do it right? You need to collect freely given, specific, informed, and unambiguous consent as per Article 32. To achieve compliance, you have to implement practices that meet stricter requirements for:

  • Consumer opt-in permission rules
  • Allowing consumers to delete their personal information
  • Storing user consent

Consent doesn’t just apply to GDPR, either. Generally speaking, the ePrivacy Directive requires consent. (And here’s a checklist to help you navigate it.)

But if you don’t have to meet strict consent, you do have other options for reaching out to people. “Legitimate interests” offers another commonly trod path to meeting the lawful basis requirements. It wouldn’t be a compliance regulation if you didn’t have an assessment to tackle. Specifically, the legitimate interest assessment (LIA). For an LIA, you have to demonstrate:

  • Are you pursuing an interest that is legitimate and real? There are a whole host of reasons, from supporting IT security to direct marketing for your company.
  • Is it necessary? Can you avoid processing data and meet your goals?
  • Do the data subject’s interests be impacted by your business interests? (Also known as the balancing test.)

Legitimate interest can be applied to both B2B and B2C clients, but different rules apply to them. Here’s a handy chart from the Information Commissioner’s Office, the Data Protection Authority in the UK, that helps explain when legitimate interest might be used. 

Does it look like legitimate interests is the best route to email marketing compliance? It may be a good option—but look before you leap. Be intentional about how you approach which lawful basis to rely upon, no matter what you end up determining. 

How to get a GDPR compliant email program going

It’s our best practice and to stay on your customers’ good side (and GDPR’s good side!), to rely on consent as much as possible and therefore we suggest building these features into your email marketing program: 

Opt-ins (and outs)

Get explicit consent for emails

Before sending out emails to someone, obtain their explicit consent with an opt-in form. Consent should be a specific, informed, and unambiguous indication of your customer’s wishes through affirmative action.

But here’s a good rule of thumb: Don’t save being explicit and transparent just for your emails. In all things privacy related, you should practice being explicit and transparent. 

Checkboxes for bundled consent

For a single item of consent, checkboxes aren’t mandatory. A few sentences can suffice for getting active consent!

However, if you are asking for consent to multiple things (for example, signing up for your email newsletter AND to use data for targeted ads), then you need to get consents for each action. 

To get these consents, use checkboxes. Just make sure that consent is still active: Don’t use pre-checked checkboxes. 

Link to your privacy policy 

Don’t forget to add a link to your Privacy Policy in the opt-in form. Subscribers have the right to access the information explaining how you process personal data.

Honor subscriber requests 

Revoking consent — i.e., unsubscribing to your emails — must be straightforward and easy. Your email recipients need to be able to:

  • Unsubscribe to that particular marketing communication
  • Unsubscribe to all of your communications
  • Contact a return email address

Storing user data and user consents

Once you get consent, then what? That consent shouldn’t just vanish into thin air. You need to store it as proof in case of audits. This proof should include:

  • Who gave consent
  • When they gave it
  • And what they specifically consented to

Controlling the Assault of Non-Solicited Pornography And Marketing (CAN-SPAM)

While GDPR may be the biggest privacy regulation to date, CAN-SPAM is the oldest when it comes to specific email marketing laws, dating back to 2003. This was in the Wild-West era of the internet, back when your inbox could be filled with a veritable unsolicited brothel, along with basically any other spam content. 

The short version

CAN-SPAM only applies to the United States and only to promotional emails, not transactional ones. (See above.) Businesses using email to communicate with US residents must follow the below requirements to stay in compliance: 

  • Don’t use misleading email addresses, names, domains, or subject lines with the intention of misleading
  • Emails to individuals who haven’t given consent must be labeled as ads (such as somewhere in the email it says this was an advertisement)
  • If the email contains explicit content, this has to be noted in the subject line
  • Include a physical address in all marketing emails
  • Provide a straightforward and easy way to unsubscribe. Requests must be fulfilled within 10 days.

Canada Anti-Spam Legislation (CASL)

Think GDPR, but limited and applying to Canada. CASL has been in effect since July 1, 2014, and hasn’t substantively changed since then. This piece of legislation focuses on protecting e-commerce in Canada by regulating business email activity to prevent identity theft, phishing, spyware, and more. 

The short version

Like GDPR, this regulation doesn’t pertain just to businesses in Canada; it applies to any business that sends marketing communications to Canadian email addresses. The basic rules include:

  • Getting consent, either express or implied, from individuals prior to sending them marketing emails
  • All consent forms must be clearly written and include the identification and contact information for the business
  • Users can revoke consent any time they wish
  • Businesses must keep records of consent for all Canadian residents
  • Marketing emails have to include the name of the company and its information, as well as instructions on unsubscribing

While CASL applies to anyone in Canada or anyone sending to a Canadian resident, there are some exceptions. Some business communications are exempt from CASL, including certain B2Bs communications. Under the B2B exemption, “commercial electronic messages” (CEMs) sent by employees or a representative are exempt providing that the: businesses have a prior relationship and the message pertains to the business activities of the recipient. 

California Consumer Protection Act (CCPA)

CCPA is the big-deal privacy legislation that went into effect on January 1, 2020. Like GDPR, the legislation establishes a series of fundamental privacy rights for consumers in California. 

The short version

Like GDPR, this regulation is geographically restricted in that it protects California residents. However, businesses to whom it applies can be located anywhere as long as they collect California residents’ email addresses. CCPA isn’t primarily focused on email marketing, but some of its rules apply. Remember that:

  • CCPA’s definition of personal information includes email addresses 
  • Every customer should be allowed to opt-out of marketing emails from you and any third-party you “sold”* their data to (such as that webinar where you didn’t have an opt-in to share the information with the sponsors and you shared the whole list)
  • Inclusion in a privacy notice that email is collected and how it’s used. 

*CCPA uses a broad definition of the term “sell.” It doesn’t necessarily mean that money is changing hands. Besides, sell, it can refer to “renting, releasing, disclosing, disseminating, making available, transferring, or otherwise communicating orally, in writing, or by electronic or other means…”

Five Tips for Success in Privacy-Forward Email Marketing

It’s easy to prioritize bigger picture privacy concerns, but it’s really important to not let email marketing fall by the wayside. 

Yes, it’s expensive to miss the marketing compliance mark. It’s also a surefire way to damage your reputation and customer trust. After all, email is a daily part of life for people. It’s a major touchpoint for marketing teams. If you drop the ball, you’re showing them that you aren’t thinking about their needs and their privacy — right in their own inbox!

Tip #1: Double up on the opt-in

All of the privacy regulations above require some level of opt-in. How do you streamline the process to work for everyone?

Double opt-ins. It’s only specifically required in Germany as a result of their interpretation of the ePrivacy Directive, but it’s a good process to implement across the board. It’s an additional step for your customers and it can drop your subscriber rate. But it does two important things for your business that ultimately create more value for everyone:

  1. It improves your email list. You get more accurate data, protects against fake subscribers and scammers, and (most importantly) it delivers leads that are more qualified
  2. It lowers the cost of your email marketing program because you’re bringing fewer invalid emails to the table (i.e., less money) and it improves your deliverability 
  3. It provides a better route to explicit consent. The two-step process guards against involuntary or accidental requests. 

You’ll remember that US CAN-SPAM doesn’t require you to get your subscribers or leads to opt-in. But the other regulations do and when it comes to privacy, opting for the more intensive measures is always the better option. Why? By making sure you’ve taken the safe route, you avoid the risk of running afoul of compliance regulations. Basically, if you follow all the rules, you don’t break any rules. 

But there’s also an important customer trust point to consider. Making the effort to get their consent actively demonstrates that you respect their choice in the matter. 

Tip #2: Keep your records up-to-date

Obtaining consent is critical. So is keeping track of it. You need to be able to prove that you’ve received valid consent and have proof of it. As such, your database should allow for you to track consents, including:

  • Who consented
  • What they consented to
  • When they consented
  • How they consented

Again, CAN-SPAM is the outlier in email marketing privacy by not requiring that you keep records of consent. See the advice above, rinse, and repeat. 

Tip #3 Don’t forget to offer an opt-out

Here’s an important point of agreement on the privacy front. Four out of four privacy regulations agree: give your subscribers the option to unsubscribe from your emails. Unsubscribing shouldn’t be like passing a Senate spending bill, though: it should be uncomplicated and timely.

The approach that we’re all about? Customer preference centers, which allow your customers to customize their email relationship with you. Do they want to hear about everything that you’re doing? Do they want to just receive the greatest hits? Preference centers facilitate this by providing nuance in customer relationships. Changing email addresses, receiving fewer or different emails, hitting the snooze button on emails, or receiving communications across other channels like SMS or social. 

Don’t forget to include a global unsubscribe option, as well. CAN-SPAM requires it!

Tip #4 And proceed with extreme caution when buying email lists

Why? There are a number of reasons. Privacy laws like GDPR make buying email lists cumbersome because of the necessary due diligence before a company can email them. 

Moreover, cold leads from an email list don’t particularly perform well. It’s not hard to guess why — these people didn’t express any interest in your business. Even the most well-crafted email will land with a thud if the recipient isn’t interested in it. And another “moreover”: purchased email lists often contain inactive or outdated emails. Sending an email to them could risk a privacy violation in and of itself!

Tip #5 Be honest about what you’re about

Your emails always need to clearly articulate who you are, your address, website, and how someone opted in to receive it.

No catfishing. Not in your online social life, and not in your email marketing. Make your proposition clear, simple, and then deliver on it. This means no clickbait headlines and no misleading promises of deals or discounts just to improve your open rates. Much like with enacting double opt-ins, you see a more measured response, but the response that you do see will be more genuine and more likely to lead to results. 

You shouldn’t just be honest with your customers, either. You should also be honest with yourself about what you’re using data for. It’s easy to be ambitious and think of reasons to collect information, but collecting data that you aren’t actually needing or using can be considered a violation. 

One thing is for sure: this is not the email marketing landscape of 20 years ago. Compliance and trust need to be a part of every interaction and every email that gets sent. Lots of marketing professionals have piecemealed out their compliance efforts, but ultimately, that leaves them scrambling to adapt and their customers wary about their privacy. 

So let’s try this instead: Take the road of more compliance. More effort. It’s worth it to keep your email marketing practices in line, and to keep your customers feeling good about your relationship with them. Ready to talk email and privacy? Drop us a line to schedule a consultation.

 

Download our free guide about what email marketing developers need to know about marketing privacy laws.

An international tour of cookies? Sounds delightful after this long year. We’re thinking: palmiers from France, Polish torunskie pierniki, Brazilian sequilhos, and kourabiedes from Greece. 

Wait, that’s from the baking blog, not the privacy one. 

But it’s important to talk about the other type of cookies from this perspective, too. While the EU’s General Data Protection Regulation (GDPR) and the ePrivacy Directive gets lots of airtime, there are nuances that businesses need to consider when planning and implementing their cookie strategy.

 

Recently Google and Amazon were fined $163 million for their use of web cookies to track user activities without seeking proper consent. Read more about is here.

Key GDPR and ePrivacy Cookie Requirements

Before we jump into talking about cookies in the EU, here’s a quick refresher on general GDPR and ePrivacy cookie requirements. 

  • You have to tell your users about all the cookies on your website in plain language. This allows them to provide informed consent. (Or not.)  
  • You can’t drop cookies—except strictly necessary ones—until you’ve received user consent for each cookie. This consent must be clear and explicit.
  • You can’t withhold services—including website or application access—if they don’t consent to cookies. (FYI: This is often referred to as “freely given consent.”)
  • You’ve got to protect your users’ data. Do third parties have access to user data? It’s still your job to protect it. 

What Do You Need to Know About Cookie Consent?

Not surprisingly, countries in the EU have come up with varied interpretations of privacy. Each member state has its own data protection authority (DPA) that monitors privacy laws in their state. They provide guidance and interpretation for businesses and the general public. 

DPAs don’t always agree on many issues in privacy. Some are still finalizing initial guidance following GDPR’s implementation. Others have been proactive in implementing GDPR and then revising regulatory guidance. Naturally, cookies are a topic up for (repeated, heated) discussion. 

And why not? Cookies can be ambiguous. What does consent look like? Is it opt-in? Opt-out? What cookies need consent? What’s personal information? What about banners and cookie walls? What’s the meaning of life? 

Need a refresher on cookies? Check out our whitepaper here or read Do I Need a Cookie Consent Banner

The list goes on. But that’s why we’re here—to help you understand the different perspectives on cookies within the EU. (We can’t help with the meaning of life, though. That’s outside of our scope.) Let’s take a look at where guidance is strongest: France, the UK, Germany, and Spain.

Cookie Consent by Country

GDPR and ePrivacy have done a great deal to bring privacy practices in line throughout Europe. Among France, the UK, Germany, and Spain, there are some big similarities. 

First off, cookie rules don’t apply just to cookies. Rather, they’re relevant to any technology storing or accessing information on a user’s device. (Notably, though, under German practice, it also has to involve processing personal data.)

Consent is viewed similarly, particularly when we’re looking at its definition. Consent—when required—must be specific, freely given, and unambiguous before cookies are deployed. However, there are some nuances when it comes to how it’s put into action in Spain. 

Consent, moreover, takes place on multiple levels. Global consent is broadly shared among the UK, France, and Spain, meaning that consent must cover each purpose for which the cookies are used. (Germany, an outlier, doesn’t comment on this.) 

Granular consent—the practice of getting consents for separate things—is also a point of general agreement, though each country takes a different approach to achieving it. While the UK doesn’t provide any guidance on the matter, France mandates a second layer allowing users to give consent to each cookie separately. Spain requires that a first layer link to granular consent tools for each category of cookie. Finally, the ability to give granular consent is a must for Germany, but they don’t dictate where it should be implemented.

One big issue in consent is third-party vendors—more commonly referred to as processors in GDPR. French, German, UK, and Spanish authorities all agree: organizations need to identify all processors who will rely on users’ consent. (France goes just a bit further and states that a list of third parties should be accessible and regularly updated.) 

But enough about the similarities. Time for a deeper dive into each country’s cookie policies.

France

France bases its cookie laws on the GDPR and ePrivacy Directive and on guidance from Commission nationale de l’informatique et des liberté (CNIL). CNIL’s most recent guidance was issued in October 2020, which updated instructions around user consent, analytic cookies, and cookie walls. 

Lawful basis for processing and consent

When it comes to the lawful basis for processing, France limits it to either user consent or strict necessity for technical cookies. Content must be given through positive action and it must be informed consent, meaning the data subjects have been given explicit and clear details about the purposes of the cookies. 

As per CNIL’s guidance, several actions don’t constitute content:

  • Continuing to browse a website
  • Pre-checked boxes
  • Browser settings

Analytic cookies and consent

According to France, organizations don’t have to inform users and collect consent if analytic cookies are being used:

  • Solely to evaluate and measure a website or application’s audience
  • Test a new version of a website or application
  • Only generate anonymous statistics

Cookie walls

According to CNIL’s latest guidance, the cookie wall as a tool isn’t GDPR compliant—consent is only valid if the user chooses to accept cookies without any significant inconvenience or negative consequences. Being denied access to a website would fall into that category. 

Consent retention and lifespan of cookies

As per CNIL-recommended best practices, cookie consent should ideally be valid for six months. Similarly, they recommended that cookie refusal should be retained for the same period of time. 

When it comes to the lifespan of cookies, it shouldn’t be longer than 13 months.

Spain

The Spanish DPA, the Spanish Agency for Data Protection or AEPD, looks to GDPR in putting together its guidance, as well as local laws: Law 34/2002 on Information Society Services and Electronic Commerce, Law 3/2018 on Data Protection and Guarantee of Digital Rights, and the AEPD’s opinions. 

AEPD was updated in July 2020, and organizations were expected to comply by October 31 of this year.

Lawful basis for processing and consent

In Spain, the lawful basis for processing is clear, affirmative consent. However, some privacy professionals have considered Spain’s definition of affirmative consent to be ambiguous.  

Unlike other member states, Spain now considers continued browsing on a website to be a valid form of consent, assuming that adequate notice has been given. Other actions that may constitute valid consent include:

  • Using a scroll bar, insofar as the information on cookies is visible without using it.
  • Clicking on any link contained in the site other than those in the second layer of information on cookies or the privacy policy link.
  • On devices such as mobile phones or tablets, by swiping the initial screen and accessing the content.

Note: these actions are considered valid consent as a form of affirmative action. They’re not saying that implied consent suffices.

Analytic cookies and consent

Analytic cookies require consent. (See, sometimes it’s straightforward!)

Cookie walls

Spain’s AEPD most recent guidance has determined that cookie walls aren’t compliant if they don’t offer an equivalent alternative to access without having to give their consent.

Consent retention and lifespan of cookies

The lifespan of cookies match their intended purposes. And given that the AEPD suggests user consent should only last 24 months, cookies should match the lifespan of consent.

UK

In the UK, the DPA is the Information Commissioner’s Office (ICO). While other DPAs in the EU are bound by GDPR, the upcoming Brexit puts the UK in a different position. Questions have, naturally, cropped up.

The UK has committed to following GDPR’s guidelines, but under the guise of a UK GDPR. More officially known as the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019.

As such, GDPR won’t actually apply in the UK after December 31, 2020—yes, it’s that soon—but the above regulation nonetheless preserves GDPR’s guidance. ICO also looks to the Privacy and Electronic Communications Regulations (PECR). 

Lawful basis for processing and consent

The user’s consent is the lawful basis for processing under ICO’s guidance. 

If consent is required under PECR for non-essential cookies, organizations can’t fall back to an alternative legal basis under PECR or GDPR (or its replacement). In cases where personal data is involved, then the ball is in GDPR’s court and legitimate interests can be used as a legal basis. 

Analytic cookies and consent

Analytic cookies don’t belong to the “strictly necessary” category of cookies. As such, you need to get consent before deploying them. 

Another point to remember for ICO guidance: first-party and third-party cookies are considered distinct. You need consent for both, but as per ICO, valid consent is viewed as harder to get for third-party cookies because of the lack of direct relationship between third party and the user. Take extra care to highlight use of third-party cookies. 

Cookie walls

In other states, cookie walls aren’t generally aligned with valid consent. However, ICO allows for the possibility if it applies to specific content and it doesn’t impede access to the website as a whole. 

Consent retention and lifespan of cookies

ICO doesn’t extend any specific guidance for how consent can be retained nor what the appropriate lifespan of a cookie should be. For both questions, there’s not a one-size-fits-all answer. 

Generally speaking, for lifespan, it’s ideal to limit duration to what is necessary for the purposes of the cookie. Likewise, for consent, you should consider what the function of consent is in the context of use. Does a user visit frequent? Are functionalities changing? Is content updated? Those types of questions should guide you when you seek consent.

Germany

In Germany, GDPR and ePrivacy are applicable, but their DPA, delightfully known as Datenshutzbehörde (DSB), also provides robust guidance for organizations. That being said, unlike other EU member states, Germany hasn’t entirely implemented Article 5(3) of the ePrivacy Directive.

Instead, there is a debate around whether some provisions within the preexisting German Telemedia Act sufficiently cover the requirements of Article 5(3) of the ePrivacy Directive. Notably, the German Data Protection Conference takes the position that Article 5(3) of the ePrivacy Directive hasn’t been implemented in German law. As a result, according to them, there is no German cookie law and instead, guidance is reliant on GDPR.

Lawful basis for processing and consent

The legal basis for processing in Germany rests on consent, contractual relationship, or legitimate interest, depending on the purpose of cookies and/or tracking tools. 

Analytic cookies and consent

Consent is required for analytic cookies when they result in transferring personal data to a third party. Even then, obtaining consent might not be strictly necessary as long as users can opt-out of transferring their data to the third party.

Cookie walls

As a rule, consent for cookies must be voluntary according to Germany’s guidance. Anyone wanting to access a site or application needs to be able to refuse cookies without negative consequences. In other words, access should be allowed even if cookies are refused.

Consent retention and lifespan of cookies

Germany doesn’t have specific local guidance on retention of consent and the lifespan of cookies. As a result, policies default to GDPR and ePrivacy. 

Cookies Around the World

Cookies in the EU, of course, aren’t limited to France, Spain, the UK, and Germany—each member state either has or has the ability to develop guidance on how cookies should be handled. And, don’t forget, these are just European cookies. Brazil, China, India, Australia, are just some of the other countries with privacy regulations in place that address cookies. 

Cookies are complex, but they’re a critical part of your privacy practices. If you haven’t had your fill of cookies yet, we’d love to help you customize your cookie practices to your EU audiences. Drop us a line to schedule a consultation today.

Cookie banners. Let’s talk about them.

They’ve been hanging around websites since 1994. (Basically, Stone Age digital technology.) Just think, how many cookie banners have you clicked past in your digital life without a second thought?

(A lot, probably.)

It’s enough to make a business owner or marketing professional wonder: do I really need a cookie consent banner to be compliant with the laws and regulations?

It’s hard to keep track of privacy regulations, after all, especially when changes are always appearing on the horizon. Consider that the European Data Protection Board (EDPB) adopted guidelines on valid consent in May. Or that Apple’s new iOs 14 requires users to authorize information known as IDFA, which requires opt-in permission before developers and publishers can start tracking ads. 

Let’s unpack this question together. 

What’s a Cookie Banner, Actually?

First: the cookie. Cookies are small text files that your computer stores when you visit a website. They contain lots of information and there’s a big variety when it comes to the types of cookie. Some are purely functional, while others might track visitor data or activity on a website. 

Cookies can be really helpful for both website owners and website visitors, but they aren’t universally loved. Especially by users. They can feel intrusive and a little Big Brother-ish, especially when the purpose of cookies isn’t clearly explained and users aren’t given options for managing user consent. 

In years past, it was acceptable to just pop some cookies onto your website and go back about your job. But now, as a result of legislative efforts, notice and consent are required before you can place cookies on a user’s device. 

The notice and consent come in the form of cookie banners. They can be a pop up. They can be a banner on your website. They can be in your header or footer. They can be a whole wall of text ala Google. 

No matter how it’s formatted, though, it has an important job: alert website visitors that cookies are present on the website and get informed consent prior to data collection. 

Approaches to Cookie Banners

You have options for cookie banners depending on your cookie practices and policies. You can take a simple approach of Notice Only, which isn’t compliant with GDPR but is straightforward. You can take the Opt-Out route, which means you fire all cookies when your visitors arrive on your website. 

However, this approach misses the GDPR mark. 

You can take the Implied Consent route, meaning your website activates strictly necessary cookies. Users are then asked to click through to learn more and otherwise consent is implied by continued use of the site. 

Finally, you can take the Opt-In approach, the most compliance-aligned method. This is your most compliance-forward approach. Fire only the strictly necessary cookies when a user arrives on your site, and get their explicit permission for everything else. An ideal opt-in cookie banner informs users what cookies are being used for and then has them take a specific and intentional action, like checking a box, before firing the rest of the cookies. 

What Laws Apply to Cookie Consent Banners?

General Data Protection Regulation (GDPR)

GDPR was seriously maligned when it rolled out in 2018. It still is spoken of in aggrieved tones by some marketing and privacy professionals. 

We get it. It’s a tough one. It required lots of businesses to recalibrate their operations. 

But behind the challenges, it does bring some good into the world. It gives people real, actionable rights! It gives them channels to exercise them! It holds businesses accountable for how they process and use personal data. That’s worth a lot. 

So where do GDPR and cookie banners meet? Like with so many privacy-related questions, it comes down to consent to data processing. 

Consent, Cookies, and GDPR

What pieces need to be included in your cookie banner according to GDPR

Opt-in Cookie Consent

GDPR requires that you take an opt-in approach, which means your website won’t fire cookies without the go-ahead from your visitors. (With the exception of those that are needed for essential site functions.) This consent should be given via an opt-in button. What’s more, you need to be extremely clear with your users: they are agreeing to cookie deployment. 

Informed Consent

Why is this clarity so important? Your visitors’ consent has to be informed and explicit. You can help them provide this informed consent by spelling out what kind of cookies you are using, why you want the data, and how you’re going to use it.  

Note that consent requirements are subject to change. For example, this fall the Commission nationale de l’informatique et des libertés (CNIL) in France issued new guidance that states scrolling past a cookie banner doesn’t constitute valid consent. Nor does the cookie wall, which makes consent required to access a site. Moreover, they recommend a “Reject All” button for the first layer of a cookie banner. 

Learn more about CNIL and their cookie guidance.

Third-Party Data Sharing

Let’s talk a little more about how you’re using personal data. For a GDPR-compliant cookie banner, you need to tell your website visitors if you’re sharing their information with third-party vendors. Yes, we know they provide important services but they’re also a significant security risk for your business and your customers. 

One big third-party service that deserves discussion here? Google Analytics. Google Analytics is one of the most common cookies run on websites so it’s understandable that people want to know how it interacts with GDPR. Google Analytics uses cookies and therefore requires user consent to be compliant. 

But while Google Analytics is a data processor, you can adjust the settings so it tracks data in an anonymous mode. This means you can choose to proceed without consent. (But we definitely recommend you consider getting consent anyway as a best practice.)

Learn more about anonymizing data.

We’d be remiss if we didn’t touch on Facebook, CCPA, and cookies. Facebook is a prolific cookie source, but they’ve taken the position that businesses need to determine whether their data transfer activities with Facebook qualify as sale of data under CCPA. 

That being said, businesses can make use of a feature known as Limited Data Use (LDU), which does just that: creates limitations on how Facebook can use your business’ data. 

Via LDU, marketers can specify which data they want to share with Facebook. Initially, LDU was automatically enabled for all Facebook business accounts, but since July 31, businesses will have to make the updates manually. 

Remember, this isn’t an exhaustive list of third-party vendors or their requirements. Always review terms and conditions for the cookies that you use.  

Link to the Website’s Cookie Policy. 

Finally, you’ve got to link to your cookie policy, which should detail how and why cookies are used and where they live on your site. (Remember, you need to have this legal document in place, too.) The easiest way to do that? Pop the link in your cookie banner.  

Link to Cookie Settings

Consider this a bonus activity. Linking to your cookie settings isn’t required for GDPR compliance if users can outright reject all your cookies. But consider this: Privacy doesn’t need to be all or nothing. Make consent management easy for customers. When they customize their interactions with your website and your brand, they’ll be in control of their information and you’ll build a better relationship with them. 

ePrivacy Directive

But before there was GDPR, there was the ePrivacy Directive. Passed in 2002 and amended in 2009, it’s not a law but rather a directive that requires EU member states to develop national privacy laws. 

While GDPR deals specifically with personal data, ePrivacy works on the issues of electronic communication, web traffic, and, you guessed it, cookies. In fact, it’s sometimes referred to as The Cookie Law because it, well, laid down the law on cookies, requiring explicit user consent before websites could fire anything but strictly necessary cookies. 

The regulation shares GDPR’s understanding and definition of consent as “freely given, specific, informed and unambiguous indication” through a statement or clear affirmative action. To be in compliance with the ePrivacy Directive, you’ll need to:

  • Get consent (as defined above) from users before firing anything other than strictly necessary cookies
  • Deliver accurate information about data tracked by each cookie before consent is given
  • Document and store consent records
  • Services shouldn’t be contingent on accepting cookies
  • Opting out and withdrawing consent should be easy

However, EU member states and their regulatory bodies add complexity to the picture. CNIL, the Information Commission Office (UK), the Swedish Data Protection Authority, and the Hellenic Data Protection Authority are just a few of the regulatory bodies that provide guidance for their states. 

To add even more complexity, the ePrivacy Directive is in the process of being upgraded to the ePrivacy Regulation. While it will carry on in spirit what the Directive put in place, it will have stricter rules for security and pose its own GDPR-like fines. On the plus side, though, the most current draft proposes to streamline cookie consent processes. (But hold your horses — the Regulation may not come into play until 2021 due to ongoing negotiations.)

Wait, what about CCPA?

You may notice that the California Consumer Privacy Act (CCPA) isn’t listed here. Quelle surprise! But CCPA, while currently the strongest state privacy law in the US, doesn’t technically require them. Instead, it requires that you notify website visitors “at or before” collection of “personal information,” which can include cookies.

Moreover, CCPA takes an opt-out rather than an opt-in approach to consent. You don’t need a banner to make the opt-out happen, but it’s the best practice to make sure you give users the fullest opportunity to exercise their individual rights. 

A little bit more about CCPA and cookies

As per CCPA, websites do need to tell users what personal data they’re collecting via cookies and if they’re going to be selling it to third parties. Don’t think you sell anything? Don’t jump to that conclusion quite yet. 

CCPA has an impressively broad definition of selling — it doesn’t have to mean that you or someone else has shelled out money. “Selling” in CCPA-land also refers to “renting, releasing, disclosing, disseminating, making available, transferring, or otherwise communicating orally, in writing, or by electronic or other means…” Even your well-intentioned ad tech might be included.

To facilitate a transparent privacy program, you can include a link that lets users accept cookies or not. One helpful further step? Provide users a preference center so they can control their cookies. 

But while preference centers are great (really great, actually), they do take strategy to implement. Be thorough by including links to industry opt-outs like About Ads or Network Advertising Initiative’s (NAI) opt-outs. If Facebook and Google cookies are part of your cookie game, requirements for opting out should be linked, too. 

Who Needs Cookie Consent Banners?

But the big question: Do you need a cookie consent banner? There are privacy regulations all over the world that deal with cookies, so it depends on where your customers and audience are. Is your audience located in the EU or the US? If you tick these boxes, you have to have a cookie consent banner:

  • If you have customers in the EU?
  • Do you target individuals in the EU?  

So, that’s a pretty short list. If you don’t collect data from EU visitors, then you’re not legally mandated to post a cookie consent banner. 

You can even set up your cookie banner to trigger just for visitors from the EU. Or just for California. Or you can set it up the same banner for everyone. Point is: you have options.

But even if you don’t, you still should strongly consider it. 

Here’s why: Major data breaches in the past years, combined with misuse of our personal information by tech giants and the ubiquity of digital content in our lives, have eroded public trust. Only 15% of people feel like they have meaningful control over their personal information held by companies. 

Compliance regulations like GDPR and CCPA work to mitigate privacy concerns and reign in misuse, but the real work shouldn’t be done in courthouses and parliaments. 

It needs to be done on the ground floor. Companies, along with their legal departments and marketing teams, can take the initiative to protect their users and their data by creating transparency in their digital marketing and handing over the privacy reigns to their users. 

All of this can happen within your cookie consent banner. 

Privacy is operationally crucial. To get privacy working for you, it has to work for your customers and to do that, it has to center around transparency and trust. If that sounds like a goal for your business, we’d love to talk. Drop us a line to schedule a conversation today!

GDPR (or the General Data Protection Regulation) has been around for over two years now. And like most two-year-olds, people have found ways to get some kind of compliance under control. 

That’s not to say that there haven’t been bumps along the way. Organizations have balked at the international reach of the regulation. Technology solutions have lagged in comparison to the regulatory environment. Business processes have lagged as well. 

Yet GDPR has continued to gain traction, especially as consumers look to protect their personal information wherever possible. Similar laws are being passed and going into action in the United States – the California Consumer Privacy Act is the first, but definitely not the last – and Brazil, Australia, and other places. It’s a big deal, globally. 

And a big job. Compliance with GDPR is a significant undertaking for organizations. The first place we suggest starting? With a data inventory. And what does a data inventory require? Taking a good long look at Article 30 of GDPR. 

Quick reference: What is GDPR?

GDPR is the most in-depth, comprehensive set of data protection regulations. GDPR, which went into effect in May 2018, limits what organizations can do with an EU resident’s personal data and codifies that resident’s right to determine how their data is used. Organizations don’t have to be located in the EU to feel the pressure of compliance or even conduct business with EU residents – if you simply collect their data, you’ve got to comply. (Or face some pretty hefty fines.)

Moreover, GDPR was a significant piece of legislation because it shifted the landscape on how personal data was defined. We all have a general understanding of personal data as information that identifies an individual. It can be something we all clearly associate with personal information, like a name or birthdate. 

However, GDPR pushed the envelope. It’s definition included technology-specific items like digital identifiers like cookies. GDPR made a particular impact in creating special categories of personal data. These categories are more carefully guarded and include information about racial or ethnic origins, political or religious beliefs, genetic or biometric data, and more. 

But GDPR isn’t just about defining data – it’s about structuring how and why companies can use it. Under GDPR, organizations that collect personal data have to keep records of processing activities. Herein lies the function of Article 30. 

See a full list of special categories of personal data here. To do a deeper dive into GDPR issues, we have a helpful FAQ that reviews common issues and a wealth of detailed blog articles that explore GDPR

A few words about Article 30

If GDPR focuses on accountability, Article 30 is one of the main tools to help create it. It tells organizations exactly what they need to document to be GDPR compliant. We’ll cover exactly what you should document for Article 30 below, but just as important as the actual data is keeping it up-to-date and organized. 

This emphasis on organized data collection is why the process of data inventories is so important. You don’t actually need a data inventory to meet Article 30 requirements, but it would be next to impossible to do it without one. With a data inventory, you can establish data flows, you can figure out what is (or isn’t) accounted for, and pinpoint vulnerabilities resulting from information transfer.

Meeting Article 30 requirements

GDPR compliance isn’t something that can be handled overnight – it contains 99 articles with important definitions, instructions, and guidelines to incorporate into how your organization handles personal data. (And even when you’re done, you’re not really done – it’s an ongoing process. That’s why we serve as fractional CPOs to help companies manage the long-term work.)

But let’s zoom in on Article 30. Article 30 provides an important jumping-off point for any GDPR-related compliance by requiring that all organizations provide records of how all personal data is processed. This means providing an Article 30 report, though you might know this by the name of, yes, data inventories, but also data mapping or records of processing activities. 

What do you need to collect to put together a data map/data inventory/record of processing activities/Article 30 report? Let’s take a look at the overall requirements referred to in the article and what they mean. 

Get ready, get set, get your records ready

Under Article 30, any organization acting in a processing capacity has to keep a record of all categories of processing activities conducted on behalf of a controller. These records should contain the following information:

  • Name and contact details of the controller
  • Purpose of processing
  • Categories of processing activities that are carried out for each controller  
  • Categories of data subjects and processed data
  • Categories of processing activities that are carried out for each controller  

It’s important to remember that an organization can be both a processor AND a controller. How to tell the difference? If you’re determining what data is collected and why, then you’re the controller. If you’re just doing the processing at the behest of another organization, then you’re the processor. As with everything in life and work, situations aren’t always black or white. Additional professional and legal guidance can be a big asset in navigating them. 

Names and contact details of the controller

If applicable, you should include the name and contact details of your data protection officer and of any joint controllers that decide with you why and how personal data is processed.

Purpose of processing

One of the kickers of GDPR is that there needs to be a legal basis for collecting data. This can include (but again, isn’t limited to):

  • When consent is given by the subject for a given purpose
  • When data collection is necessary for a contract with the data subject
  • When there is a legal obligation
  • To protect the vital interests of the data subject
  • For public interest or in the course of official authority
  • The legitimate interests of the data controller or a third party as long as those interests don’t infringe on the rights of the data subject

Categories of processing activities that are carried out for each controller  

According to Article 30, “processing’ means any operation or set of operations which is performed on personal data or on sets of personal data…” 

That’s quite a broad definition, right? This broadness allows the regulation to apply to as many organizations that might have their hands on personal data as possible. 

Article 30 does provide a (non-exhaustive) set of examples for guidance, though. Data processing includes (but is in no way limited to), “collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.”

As per this requirement, you don’t just have to pinpoint who is doing the collecting and processing. You also have to identify the “categories of recipients of personal data,” that is, anyone that you’re sharing collected personal data with. This could include vendors, government agencies, credit bureaus, and more. 

Categories of data subjects and of the categories of personal data

Article 30 requires that categories of data subjects and processed personal data are included in records of processing activities. In a more straightforward way, this just means what kind of information you’re collecting and about whom.

Personal Data

  • Name
  • Home address
  • E-mail address 
  • Personal phone number
  • Work phone number
  • Birthday/age Languages
  • Passport details
  • Social security number or other national identifiers


  • Driver's license details
  • Sex
  • Marital status 
  • Wage/salary
  • Bank account
  • Credit card details
  • Education level/diplomas

Data Subjects

  • Current personnel
  • Former personnel
  • Contractors/consultants/freelancers 
  • Students
  • Volunteers
  • Directors
  • Shareholders


  • Beneficiaries
  • Public officers
  • Consumers
  • Website end-users
  • Customers
  • Prospects
  • Suppliers

Special categories of data

  • Race and ethnic origin
  • Religious or philosophical beliefs
  • Political opinions
  • Trade union memberships


  • Biometric data used to identify an individual
  • Genetic data
  • Health data
  • Data related to sexual preferences, sex life, and/or secual orientation

Where applicable/possible

You may also need to include information on the following:

  • Identification of any transfer of personal data to another country or international organization. This needs to meet cross border transfer requirements.

  • Time limits for the erasure of different categories of data

  • General description of the technical and organizational security measures 

How to go about the work of meeting Article 30 requirements?

Data inventories don’t just create themselves! Knowing what you need to put together is half the battle, but you also need to determine effective internal processes to do the work. Some things to consider:

  • Are you starting from scratch or using an existing data map? 

  • How are you going to populate it: automated scanning? Questionnaires? API integration? 

  • How far back are you collecting data? 

  • Who is doing the work - your IT team? Legal? 

And, importantly, what is your long-term strategy for maintaining your records? Compliance is never a one-and-done deal. It requires care, attention, and strategy over time. 

If you’re ever feeling overwhelmed, let us know. We’re happy to advise. Red Clover Advisors has been a partner in guiding clients through the process of meeting GDPR compliance requirements for US. We help you create a comprehensive strategy covering data inventories, privacy policies, and data protection that are custom-built for your company’s needs. 

To get started with your own roadmap, reach out to set up a free consultation with our team today.

For many organizations in the US and abroad, the General Data Privacy Regulation (GDPR) and the California Consumer Privacy Act (CCPA) lay the groundwork for how data security and consumer privacy are approached.

These regulations have made big impacts in the data landscape. An important element of these legislative landmarks? The need for businesses to implement cookie banners across their website and app. But while it’s tempting to just add a cookie banner to your website and move on to your next project, do you know what the deal actually is with them – and how to make sure you’re truly compliant? 

Differences Between GDPR and CCPA: The Nutshell Version

Comparing GDPR and CCPA can be a helpful exercise in understanding data privacy issues. While the two regulations aren’t interchangeable, they both deal with similar issues and similar concerns in individual rights. Both of them create legal requirements around:

  • Transparency in businesses practices dealing with personal data 
  • Security and control over personal information for consumers
  • Defining digital identifiers (cookies) as personal information  

One of the big points of departure between GDPR and CCPA is the issue of user consent. Consent and data are approached from two different angles between GDPR and CCPA. GDPR centers on the user, requiring prior consent for collecting cookies. CCPA allows businesses the ability to collect data before getting consent as long as users have the ability to opt-out of collection.

Another significant difference between GDPR and CCPA is scope. While both have international reach, despite the fact they pertain to residents of specific territories, compliance mandates differ. Under GDPR, any website, organization, or business has to comply with the regulation if it’s processing the personal data of EU residents. (Even if they aren’t actually located in the EU.)

On the other hand, the CCPA requires companies or for-profit businesses or organizations have to comply – and only if they meet the following criteria:

  • Has a gross revenue of more than $25 million
  • Buys, receives, sells, or shares personal information of more than 50,000 consumers, households, or devices each year for commercial purposes
  • Derives 50% or more of annual revenues from selling consumers’ personal information.

Meet Your GDPR Cookie Banner Compliance Requirements

GDPR compliance. We’ve been talking with that for a little bit, haven’t we? Seeing that GDPR has been in effect since May 25, 2018, you may have already grappled with cookie banners and consent.  

A key tenant – perhaps even THE key tenant – of GDPR requirements is that EU residents have the right to be informed when a business or organization collects their personal data. And it’s not just that they’re collecting the data – businesses and organizations have to tell people why they’re collecting it, how long they’re keeping it, and who they’re sharing it with. If an individual doesn’t want their data used in that manner, they have the right to object.

But how does this actually play out on websites? Websites and apps that are used by visitors from the EU must implement a consent banner that complies with GDPR and it has to have several pieces in place. 

Opt-in Cookie Consent

When you set up your cookie banner, the safest way to approach cookie consent is to take an opt-in approach. The opt-in approach means that website visitors have to actively give you permission to drop cookies. (At least those that aren’t essential for site functions.)  

How do you get that consent? By an opt-in button. But remember, your text has to be crystal clear in communicating that the user is agreeing to cookie deployment. 

More on Cookie Deployment

Let’s expand on cookie deployment just a little bit. According to GDPR, your website needs to be sufficiently detailed so that visitors are able to give informed consent about accepting cookies. A key piece of this information is the whats and whys of your cookies. What kinds of cookies are you using? Why do you want the data and how are you going to use it? 

Third-Party Data Sharing

When we talk about how we’re using visitors’ data, one topic that comes up time and again is sharing with third-party vendors. Third-party vendors provide businesses with valuable services, but they also pose a security risk. For transparency, you need to inform users who else has access to their data. 

Link to the Website’s Cookie Policy. 

You’ve got a cookie policy. (Right?) Don’t be shy about sharing it with your website visitors – it’s part of your compliance journey. 

The most straightforward way to get people to your policy is by adding a link to your website’s cookie policy in your cookie banner. Your cookie policy should cover the details of how cookies are used on your site and include an exhaustive list of all the cookies you’ve put into place. 

Win Brownie (Err…, Cookie) Points

You don’t have to do this, but your visitors will appreciate it if you add a link to your cookie settings within the cookie banner. Yes, it’s not strictly required by GDPR as long as visitors have the choice to refuse all cookies. Website users, unsurprisingly, appreciate the option to control their user experience and their data. 

Meet Your CCPA Cookie Banner Compliance Requirements

The CCPA went into effect on January 1, 2020, but only recently became enforceable as of July 1. Similar to GDPR, CCPA gives California residents the right to be informed when a business or organization collects their personal data. In fact, California residents even have the right to bring suit against businesses in certain cases. 

Under CCPA, website owners have to inform users about what information they’re collecting, how they’re processing it, and with whom they share it. That part is very similar to GDPR. 

However, there is a big difference between GDPR and CCPA: CCPA takes an opt-out rather than an opt-in approach. While CCPA doesn’t require a banner to facilitate the opt-out, it’s currently the best practice to make sure you’re giving visitors the ability to opt-out at the time of – or before – collection.  

The CCPA does restrict one aspect of data collection for websites: the sale of personal data for visitors under 16 years old. These underage visitors are required to opt-in rather than opt-out. So if you’re not sure you don’t have visitors under the age of 16, it’s better to use the opt-in approach. 

With all that in mind, let’s take a look at the Ingredients for a CCPA-compliant cookie banner. You should include the following in your cookie banner. 

Information About Cookie Use

CCPA requires websites to provide users with the details about why they’re collecting and using cookies and if they’re going to be sharing or selling that information to third parties. 

A Button to Accept Cookies

As noted above, there’s not an opt-in requirement under CCPA. However, you can include a link that allows users to accept cookies. (But you can fire cookies before the website user accepts them as long as you give them the information about data you’re collecting at the point of collection.) 

As in the GDPR version of a cookie banner, you have the option of including a link to a cookie setting page that allows users to opt-in or out. No, it’s not necessary, but yes, it’s a good step towards transparency and user experience. 

Do Not Sell Button

Under CCPA, you’ve got to give your users the ability to opt-out not just of data collection, but of the sale of personal information. According to CCPA, selling includes the following: “selling, renting, releasing, disclosing, disseminating, making available, transferring, or otherwise communicating orally, in writing, or by electronic or other means, a consumer’s personal information by the business to another business or a third party for monetary or other valuable consideration.” With such a broad definition, it’s important for companies to understand the data that is collected and shared and specifically what the third party is doing with the information to determine if data is classified as a sale under CCPA 

(One issue to be mindful of is how you or your partners are using ad tech. While not all ad tech is considered selling, some uses may fall into the category of sales.) 

To uphold CCPA requirements, you need to provide the option of opting out. CCPA is specific on how you should do this: include a link or button to an opt-out form on your website’s home page. 

Your “Do Not Sell” needs to include some specific information, as well. It needs to have:

  • A link to your website’s privacy policy
  • A button that allows them to opt-out of personalized ads

Let us reiterate: Your “Do Not Sell” button isn’t the same thing as or interchangeable with a cookie banner. Don’t treat it as such. It’s a separate function. However, it’s smart to use it alongside your cookie banner to help your website use cookies to process data in a CCPA-compliant manner.

Tying it all together

Yes, both GDPR and CCPA have a lot of moving pieces that you have to address in your cookie banners. And yes, it’s tempting just to find a customizable cookie banner online and wash your hands of it. 

But we don’t recommend this approach. Cookie banners don’t exist in a vacuum. Cookies change and have to be updated. It should all be part of your larger privacy strategy.  

If this feels overwhelming, we hear you. That’s why we work closely with clients to build a manageable strategy for long-term business goals. Ready to take the next step? Give us a shout. We’d love to chat.

Press Release issued April 15, 2019:

Red Clover Advisors, a national consulting firm advising businesses on privacy and its opportunities, is proud to announce national certification as a Women’s Business Enterprise by the Greater Women’s Business Council, a regional certifying partner of the Women’s Business Enterprise National Council (WBENC).

“As one of the few WBENC certified privacy-focused consultancies, clients can benefit from our unique perspective while demonstrating their commitment to fostering diversity within their supply chain,” said Jodi Daniels, Founder and CEO of Red Clover Advisors. “Clients receive concierge level service with the added advantage of working with a professional services partner holding a nationally recognized certification.”

WBENC’s national standard of certification implemented by the Greater Women’s Business Council is a meticulous process including an in-depth review of the business and site inspection. The certification process is designed to confirm the business is at least 51% owned, operated and controlled by a woman or women.

The inclusion of women owned businesses among their supply chain demonstrates the commitment of companies to foster diversity and accelerate the maturity of their supplier diversity programs.

To learn more about Red Clover Advisors, please visit redcloveradvisors.com.

About Red Clover Advisors:

Red Clover Advisors creates customized and affordable privacy programs to fit the size and diversity of each business. Our privacy consultancy is dedicated to understanding the ins and outs of balancing customer data collection and use, GDPR and US privacy law compliance, operationalizing privacy, digital governance, online data strategy, and much more. Our job is to simplify privacy practices so your business can gain a competitive advantage through trust. We believe privacy is just good business.

About WBENC: 
Founded in 1997, WBENC is the nation’s leader in women’s business development and the leading third-party certifier of businesses owned and operated by women, with more than 13,000 certified Women’s Business Enterprises, 14 national Regional Partner Organizations, and over 300 Corporate Members. More than 1,000 corporations representing America’s most prestigious brands as well as many states, cities, and other entities accept WBENC Certification. For more information, visit www.wbenc.org