Dispelling the Myths: Shared Responsibility in GDPR and ePrivacy Directive Compliance

In a recent LinkedIn debate with esteemed Data Protection Officers (DPOs) and privacy lawyers, I was struck by the pervasive confusion surrounding compliance with the GDPR and the ePrivacy Directive. A glaring issue emerged: many professionals focus solely on the responsibilities of businesses while overlooking the accountability of solution suppliers.

This imbalance leads not only to frustration but also to widespread non-compliance. How can businesses be expected to comply when the tools they depend on are inherently non-compliant? It's time to clarify the situation, delineate the responsibilities of all parties involved, and offer a path forward to ensure compliance is a shared effort, not a blame game.

The Core Issue is Misplaced Accountability

A recurring theme in privacy discussions is the tendency to blame businesses for compliance failures, even when the root cause lies with the tools they use. Consider newsletter services with built-in analytics that cannot be disabled. These tools often violate Article 5(3) of the ePrivacy Directive by collecting user data without explicit consent.

When businesses use such tools, they face an impossible choice: comply with the law or use the service. The real issue lies with the suppliers of these tools, who fail to provide compliant solutions. This situation penalizes businesses striving to do the right thing and undermines the principles of the GDPR and the ePrivacy Directive.

The Law Is Clear About Consent and Responsibility

The ePrivacy Directive, particularly Article 5(3), is unambiguous: explicit consent is required before storing or accessing information on a user's device unless it is strictly necessary for the service requested. This requirement extends beyond cookies to include other tracking technologies like analytics pixels and beacons.

The European Data Protection Board (EDPB) Guidelines 2/2023 back this up, making it clear that things like implied consent or pre-checked boxes don’t count. They emphasize that consent must be informed, specific, and freely given. Users should be able to opt out of non-essential features, such as analytics, without losing access to the primary service.

Solution Providers Must Step Up

Compliance issues often come down to the tools businesses use, not the businesses themselves. Many providers offer tools that pre-load cookies or track users before getting their consent, which clearly breaks GDPR and ePrivacy Directive guidelines.

For example, some newsletter platforms embed analytics into their services with no option to disable them. This forces businesses to rely on "legitimate interest," an approach that often falls short of compliance requirements.

The market urgently needs privacy-centric alternatives. Companies like AesirX offer GDPR-compliant, first-party analytics solutions that prioritize user consent and privacy. These tools demonstrate that compliance is achievable without compromising functionality.

Compliance Is a Shared Responsibility

Compliance is not a one-sided obligation but a shared responsibility between businesses and solution providers. While businesses must audit their tools and processes, providers must design products that align with legal requirements.

The GDPR's Privacy by Design principle mandates that privacy considerations be embedded into tools and systems from the outset. Suppliers who fail to integrate these principles hinder compliance and erode trust in the market.

Using First-Party Data to Reduce Third-Party Risks

To navigate this complexity and foster genuine compliance, both businesses and solution providers need to focus on reducing reliance on third-party tools that pose significant privacy risks.

For Businesses: Transition to First-Party Data Practices

• Audit Third-Party Dependencies: Identify all third-party tools in use and assess their compliance with GDPR and the ePrivacy Directive.
• Adopt First-Party Solutions: Shift towards first-party analytics and data collection methods. Tools like AesirX Analytics enable you to gather insights without sharing data with external parties, thereby reducing risk.
• Strengthen Data Control: By using first-party data, you maintain greater control over how user information is collected, stored, and processed, enhancing your ability to comply with regulations.

For Solution Providers: Innovate with Privacy-Centric, First-Party Tools

• Design for Privacy: Develop products that prioritize user privacy, minimizing the need for third-party integrations that can compromise data security.
• Enable Configurable Privacy Settings: Allow businesses to customize data collection features, such as disabling analytics tracking that isn't essential, to align with compliance needs.
• Promote Data Sovereignty: Design your solutions to empower businesses to retain ownership and control over their data, reducing dependency on external entities.

By focusing on first-party data practices, both parties can significantly reduce the risks associated with third-party tools. This shift not only enhances compliance but also builds a foundation of trust with users who are increasingly concerned about how their data is handled.

Building Trust Through Privacy-First Strategies

Compliance isn't just a legal obligation – it's an opportunity to build trust and differentiate in an increasingly privacy-conscious market. Consumers value their data privacy, and when businesses and solution providers jointly prioritize ethical data practices, they foster stronger customer relationships.

Embracing first-party, privacy-centric solutions allows us to align with regulations while championing transparency and fairness. Let's move toward a digital ecosystem where compliance is a collective effort, and trust is the foundation of every interaction.

The time for passive observation has passed; decisive action is required now.

For Businesses

• Take Charge of Compliance: Don't settle for non-compliant tools. Demand that your solution providers adhere to GDPR and ePrivacy Directive standards.
• Invest in Privacy-First Technologies: Allocate resources to adopt first-party solutions that safeguard user data and enhance compliance.
• Lead by Example: Make privacy a core value of your business strategy and inspire others to follow suit.

For Solution Providers

• Innovate Responsibly: Prioritize the development of tools that respect user privacy and meet all regulatory requirements.
• Educate and Support Clients: Help businesses understand how to implement your solutions in a compliant manner.
• Set Industry Standards: Be a pioneer in creating and promoting privacy-centric technologies.

Collective Action Steps

• Join Forces: Collaborate across the industry to share best practices and develop unified standards for compliance.
• Advocate for Change: Use your influence to push for stronger enforcement of regulations and accountability for non-compliance.
• Raise Awareness: Educate your networks about the importance of privacy and the steps necessary to achieve it.

Let's not wait for regulatory penalties or data breaches to force our hand. By acting now, we can proactively shape a digital future where privacy is respected, compliance is standard, and trust is restored.

Your Move! Be the Catalyst for Change

I urge you to act today:

• Start the Conversation: Bring this issue to the forefront in your organization and industry circles.
• Make Strategic Decisions: Choose partners and providers who align with your commitment to privacy.
• Hold Each Other Accountable: Establish accountability measures to enable ongoing compliance and ethical data practices.

Together, we can build a fairer, more privacy-conscious world – one where compliance is a shared commitment to doing what's right.

If your organization is struggling with technical compliance, you are more than welcome to reach out and i will be happy to discuss how we can help.

Ronni K. Gothard Christiansen // VikingTechGuy?

Creator, AesirX.io