August 13, 2020

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August 13, 2020

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Advertisers, Data Collection, and the GDPR

The General Data Protection Regulation (GDPR), EU legislation that will take effect in May 2018, will drastically change how companies can collect and use personal data about web users in Europe. Among other things, the GDPR will require that users browsing the internet give unambiguous consent to the collection of their personal data every time they visit websites.

Under the GDPR, the following rules will apply for the collection of a user’s personal data through websites:

  • The user’s consent must be given freely and must be specific, informed, and unambiguous.

  • The user’s consent cannot be bundled with other written agreements.

  • The user’s consent must be actively given, and cannot be gained through inactivity or prechecked boxes.

  • The user may withdraw his or her consent at any time and ask to have his or her data erased.

  • In most cases, the user cannot be asked to consent to sharing his or her data in order to gain access to a service.

These new rules could have a drastic effect on advertising firms, including ad-tech firms that use data to target ads across the internet and data warehouse firms that buy data for multiple purposes. After the GDPR becomes effective, in order to use personal data, such firms will be dependent on companies obtaining consent to collect such data from internet users first. If a company violates these new rules, the penalties are high—up to 4% of the company’s global revenue or 20 million Euros, whichever is greater.

This new regulatory framework contrasts with recent moves by the US Congress, which recently invalidated the Federal Communications Commission’s privacy and data security rules.

Copyright © 2020 by Morgan, Lewis & Bockius LLP. All Rights Reserved.National Law Review, Volume VII, Number 181


About this Author

Emily Lowe, Corporate finance Attorney, Morgan Lewis
Of Counsel

Emily R. Lowe represents clients in commercial transactions, with a focus on the acquisition, use, protection, development, and commercialization of technology and biotechnology. Emily helps domestic and international companies commercialize their products through various commercial vehicles, including manufacturing and supply agreements and distribution strategies, and development and licensing agreements.

Katherine B. O'Keefe, Morgan Lewis, Technology Lawyer

Katherine B. O’Keefe is part of a team that handles critical commercial transactions that enable our clients to run their business operations effectively. The team is focused on technology transactions, including licensing, services, and alliance deals that involve emerging technologies such as cloud computing, software as a service (SaaS), and data analytics. Our technology, outsourcing, and commercial transactions lawyers assist clients in managing their online presence, from website development, hosting, and maintenance; to privacy and use policies; to data breach and retention issues.