This looks like a very welcome development: The European Commission (EC) is to ask for status updates of all international GDPR cases with all the Member State Data Protection Authorities (DPAs) every other month. This in response to a formal complaint by the Irish Council for Civil Liberties starting in 2021 about the footdragging of the Irish DPA in their investigations of BigTech cases (which mostly have their EU activities domiciled in Ireland).
The GDPR, the EU’s data protection regulation, has been in force since mid 2018. Since then many cases have been progressing extremely slowly. To a large extent because it seems that Ireland’s DPA has been the subject of regulatory capture by BigTech, up to the point where it is defying direct instructions by the EU data protection board and taking an outside position relative to all other European DPA’s.
With bi-monthly status updates of ongoing specific cases from now being requested by the EC of each Member State, this is a step up from the multi-year self-reporting by MS that usually is done to determine potential infringements. This should have an impact on the consistency with which the GDPR gets applied, and above all on ensuring cases are being resolved at adequate speed. The glacial pace of bigger cases risks eroding confidence in the GDPR especially if smaller cases do get dealt with (the local butcher getting fined for sloppy marketing, while Facebook makes billions of person-targeted ads without people’s consent).
So kudos to ICCL for filing the complaint and working with the EU Ombudsman on this, and to the EC for taking it as an opportunity to much more closely monitor GDPR enforcement.
This is quite something to read. The Irish data protection authority is where most GDPR complaints against US tech companies like Facebook end up, because the European activities of these companies are registered there. It has been quite clear in the past few years how enormously slow the Irish DPA has been in dealing with those complaints. Up to the point where the other DPA’s complained about it, and up to the point where the European DPA intervened in setting higher fine levels than the Irish DPA suggested when a decision finally was made. Now noyb publishes documents they obtained, that show how the Irish DPA tried to get the other national DPA’s to accept a general guideline they worked out with Facebook in advance. It would allow Facebook to contractually do away with informed consent by adding boiler plate consent to their TOS. This has been the FB defense until now, that there’s a contract between user and FB, which makes consent unnecessary. I’ve seen this elsewhere w.r.t. to transparency and open data in the past as well, where government entities tried to prevent transparency contractually. Contractually circumventing and doing away with general legal requirements isn’t admissable however, yet that is precisely what the Irish DPA attempted to make possible here through a EU DPA Guideline.
Reading this, the noticeable lack of progress by the Irish DPA seems not to be because of limited resources (as has been an issue in other MS), but because it has been actively working to undermine the intent and impact of the GDPR itself. Their response to realising that adtech is not workable under the GDPR seems to be to sabotage the GDPR.
The Irish DPA failed to get other DPA’s to accept a contractual consent bypass, and that is the right and expected outcome. That leaves us with what this says about the Irish DPA, that they attempted it in the first place, to replace their role as regulator with that of lobbyist:
It renders the Irish DPA unfit for purpose.