Closeup of human finger pointing to smartphone message with button Review Privacy Policy showing the problem with GDPR and transparency
GDPR and The Trouble with Transparency by Dale Smith, Co-Founder and Futurist at PrivacyCheq

GDPR and The Trouble with Transparency

Every privacy professional knows by now that several weeks ago CNIL, France’s Data Protection Agency (DPA), imposed a fine of 50 million Euros against GOOGLE for violating “the obligations of transparency and information” rules imposed by the EU’s General Data Protection Regulation (GDPR). LINK

Since tens of thousands of complaints have been submitted to EU DPAs against GDPR-exposed companies since May of 2018, this action against GOOGLE does not come as a complete surprise, considering their massive market presence and activity around the collection of personal data.  What does come as a surprise (maybe even to GOOGLE), is the fact that their alleged failure to provide proper transparency to EU data subjects is the centerpiece of CNIL’s action.  With all due respect to GOOGLE, their EU-facing privacy policy currently runs to 29 pages and is a masterpiece of proactive abundant disclosure and respect for GDPR compliance. It is very, very well done, by current privacy policy standards.

Yet CNIL as a regulator is clearly not satisfied.  What is the trouble here?  What are the “obligations of transparency” that CNIL believes are missing from GOOGLE’s lavish recital of privacy policy information?  In CNIL’s words – the answer is “… the information provided by GOOGLE is not easily accessible to users.”   CNIL goes on to state – “Indeed, the general architecture of the information chosen by (GOOGLE) does not … respect the obligations of the Regulation.  Essential information such as the purposes for which the data is processed, the length of time the data is stored, or the categories of data used to personalize the advertisement, are excessively scattered throughout several documents, which include buttons and links that it is necessary to activate to read additional information.  Relevant information is accessible only after several steps, sometimes involving up to five or six actions.”

Summarizing, CNIL has judged GOOGLE’s transparency efforts on the basis of how well they serve the needs of GOOGLE’s customers, also known as EU citizens.  The GDPR’s Article 12.1 yard stick mandating that privacy information shall be provided “… in a concise, transparent, intelligible, and easily accessible form, using clear and plain language … “ has been applied.

To those of us tasked with delivering adequate transparency under GDPR and other new and emerging privacy laws, this a teachable moment.  The lesson: beginning in 2019, the effectiveness of privacy transparency will be judged from the point of view of how well it serves the needs of data subjects (users, customers, citizens, etc.), and no longer from the point of view of how well it serves the purposes of the data controller’s business.  The days of “Post and Hope” are over.

This is a major concern. If GOOGLE can’t get transparency right, who can?  Is this transparency Armageddon?  In this writer’s opinion, it is not.  On the contrary, it is a strong signal for positive change.  It is a signal that the consumers’ helpless feeling in the “Check the I Agree Box or Go Away” moment while viewing a legalistic privacy policy and/or a no-choice, off-topic cookie banner could be at an end.  It is a signal that GDPR-grade transparency is here to stay. Legalistic privacy policies will always be with us of course, but the privacy world is currently primed to embrace a new “layered notice” paradigm for delivering privacy information to users on their terms.

What form would a new paradigm for transparency take?  What is a real-world example of how enterprises regularly inform citizens of copious and complex information in a way that is explicit, specific, intelligible, concise, and easily accessible?  The answer can be found in the aisles of the world’s grocery stores.  It is the ubiquitous Nutrition Facts-style label.   Consider this generic example:

Image of standard nutrition facts label
Nutrition Facts

This Nutrition Facts title name and font are familiar and iconic around the world.  The label’s gridded framework supports clear and plain language presenting a prospective buyer/user with a select, concise list of best questions about this specific product. Each issue or question prompts a clear and explicit answer.  The user can digest every detail of the information (unlikely), focus in on a fact of particular interest (calories, sodium, carbs?) or choose to ignore the notice completely (I trust this company, and know that the facts are here if I ever need them).

The nutrition facts information format goes a long way to meeting the transparency requirements of GDPR and its many derivative regulations that are springing up around the world.  But two major concepts are missing that would make this disclosure format ideal for privacy notices.

First, privacy is much more complicated than food.  Single digit or single word right-hand “answers” to elements of the framework are often inadequate to describe privacy concepts.  For privacy facts, each answer needs to have “drill down” capability to present multiple sublayers of information on request.  Secondly, unlike the flat visual nutrition presentation, a Privacy Facts Notice needs to be interactive.  It needs to place digital control into the hands of the user to navigate, view, select, drill down on, expand on, respond to, and exit or ignore the presentation.

Fully enhanced with “drill down” and interactive functionality, here’s a sample of how a Privacy Facts Interactive Notice (PFIN) looks in the digital world, poised for interaction with a user.

One more major benefit emerges from marrying nutrition label simplicity with modern digital technology.  The resulting consumer-paced dialogue now becomes operational across the full spectrum of consumer-facing touchpoints (websites, tablets, smartphones, mobile apps, IoT devices, venue signage, QR codes, etc.).

Like nutrition facts labelling, the simplicity and familiarity of PFIN notices build trust between data controllers and data subjects, enterprises and citizens, suppliers and consumers.  Implementation of this new notice paradigm can go a long way towards eliminating the decades-old trouble with transparency for enterprises and users alike.

The €50 million fine against Google is a sign that #GDPR grade transparency and #privacy policies are here to stay.Click to Tweet