IMY (Sweden) - DI-2020-11397: Difference between revisions
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CDON AB (the controller) used Google Analytics tool provided by Google LLC (processor) on its website. For the use of this tool, the controller transferred users’ personal data to the processor, in the US. | CDON AB (the controller) used Google Analytics tool provided by Google LLC (processor) on its website. For the use of this tool, the controller transferred users’ personal data to the processor, in the US. | ||
In 2020, ''noyb'' lodged a complaint with the Austrian DPA alleging that the controller breached the provisions of Chapter V GDPR. | The controller and Google had implemented standard contractual clauses (‘SCCs’) within the meaning of [[Article 46 GDPR]]. | ||
In 2020, ''noyb'' lodged a complaint with the Austrian DPA alleging that the controller breached the provisions of Chapter V GDPR. | |||
The complaint was transferred to the Swedish DPA in its quality of lead supervisory authority pursuant to [[Article 56 GDPR]]. Following the complaint, the DPA investigated the data transfers from the controller to the US through the use of Google Analytics. | The complaint was transferred to the Swedish DPA in its quality of lead supervisory authority pursuant to [[Article 56 GDPR]]. Following the complaint, the DPA investigated the data transfers from the controller to the US through the use of Google Analytics. | ||
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Secondly, the DPA considered whether CDON AB is the controller, and held that - by deciding to implement the Google Analytics tool on its website for the purpose of enabling the controller to analyse how the website is used – CDON AB determined the purposes and means of the collection and subsequent transfer of those personal data. The DPA confirmed that CDON AB is the controller. | Secondly, the DPA considered whether CDON AB is the controller, and held that - by deciding to implement the Google Analytics tool on its website for the purpose of enabling the controller to analyse how the website is used – CDON AB determined the purposes and means of the collection and subsequent transfer of those personal data. The DPA confirmed that CDON AB is the controller. | ||
Thirdly, the DPA investigated whether the controller’s transfer of personal data to the US is compatible with [[Article 44 GDPR]] and has legal support under Chapter V GDPR | Thirdly, the DPA investigated whether the controller’s transfer of personal data to the US is compatible with [[Article 44 GDPR]] and has legal support under Chapter V GDPR. By citing the [https://curia.europa.eu/juris/document/document.jsf?text=&docid=228677&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=3618 Schrems II] judgment, the DPA noted that the use of the SCCs is not in itself sufficient to achieve an acceptable level of protection for the personal data transferred when transferring personal data to the US when the data importer is to be classified as a provider of electronic communications services within the meaning of 50 US Code § 1881 (b)(4). | ||
Fourhtly, it was assessed whether the controller had implemented sufficient additional safeguards for the data transfers. After the assessment, the DPA found that the additional safeguards adopted by Google were not effective, as they do not prevent the possibility for US intelligence agencies to access the personal data or render such access ineffective. Moreover, neither the SCCs nor the other measures invoked (truncating last octet of IP addresses) by the controller could support the transfer as set out in Chapter V GDPR. | Fourhtly, it was assessed whether the controller had implemented sufficient additional safeguards for the data transfers. After the assessment, the DPA found that the additional safeguards adopted by Google were not effective, as they do not prevent the possibility for US intelligence agencies to access the personal data or render such access ineffective. Moreover, neither the SCCs nor the other measures invoked (truncating last octet of IP addresses) by the controller could support the transfer as set out in Chapter V GDPR. | ||
Latest revision as of 15:16, 5 July 2023
| IMY - DI-2020-11397 | |
|---|---|
 | |
| Authority: | IMY (Sweden) |
| Jurisdiction: | Sweden |
| Relevant Law: | Article 44 GDPR Article 56 GDPR Article 60 GDPR 50 US Code § 1881 (b)(4) |
| Type: | Investigation |
| Outcome: | Violation Found |
| Started: | |
| Decided: | |
| Published: | |
| Fine: | 300000 SEK |
| Parties: | CDON AB |
| National Case Number/Name: | DI-2020-11397 |
| European Case Law Identifier: | n/a |
| Appeal: | Unknown |
| Original Language(s): | Swedish |
| Original Source: | IMY (Sweden) (in SV) |
| Initial Contributor: | n/a |
The Swedish DPA held that by using Google Analytics provided by Google LLC, CDON AB breached Article 44 GDPR. SCCs and safeguards that were in place could not support data transfers to the US in a way that would not undermine the level of protection of personal data guaranteed by the GDPR.
English Summary
Facts
CDON AB (the controller) used Google Analytics tool provided by Google LLC (processor) on its website. For the use of this tool, the controller transferred users’ personal data to the processor, in the US.
The controller and Google had implemented standard contractual clauses (‘SCCs’) within the meaning of Article 46 GDPR.
In 2020, noyb lodged a complaint with the Austrian DPA alleging that the controller breached the provisions of Chapter V GDPR.
The complaint was transferred to the Swedish DPA in its quality of lead supervisory authority pursuant to Article 56 GDPR. Following the complaint, the DPA investigated the data transfers from the controller to the US through the use of Google Analytics.
Following the complaint filed by noyb, the Swedish DPA initiated supervision of the controller. The investigation concerned whether the controller transfers personal data to the US through its use of the Google analytics tool, and whether the controller has legal support for this under Chapter V GDPR.
Holding
Firstly, the DPA considered whether the data processed through Google analytics tool constitutes personal data and found that the data does constitute personal data as cookies containing unique identifiers were placed on the data subject’s device and subsequently transmitted to Google LLC. It was highlighted by the DPA, that even if such unique identifiers would not in themselves be considered to make individuals identifiable, it must be taken into account that in the present case those unique identifiers can be combined with additional elements.
Secondly, the DPA considered whether CDON AB is the controller, and held that - by deciding to implement the Google Analytics tool on its website for the purpose of enabling the controller to analyse how the website is used – CDON AB determined the purposes and means of the collection and subsequent transfer of those personal data. The DPA confirmed that CDON AB is the controller.
Thirdly, the DPA investigated whether the controller’s transfer of personal data to the US is compatible with Article 44 GDPR and has legal support under Chapter V GDPR. By citing the Schrems II judgment, the DPA noted that the use of the SCCs is not in itself sufficient to achieve an acceptable level of protection for the personal data transferred when transferring personal data to the US when the data importer is to be classified as a provider of electronic communications services within the meaning of 50 US Code § 1881 (b)(4).
Fourhtly, it was assessed whether the controller had implemented sufficient additional safeguards for the data transfers. After the assessment, the DPA found that the additional safeguards adopted by Google were not effective, as they do not prevent the possibility for US intelligence agencies to access the personal data or render such access ineffective. Moreover, neither the SCCs nor the other measures invoked (truncating last octet of IP addresses) by the controller could support the transfer as set out in Chapter V GDPR.
In conclusion, the DPA found that, with the transfers, the controller undermined the level of protection of personal data of data subjects guaranteed by Article 44 GDPR and consequently breached Article 44 GDPR. The DPA issued a fine of 300,000 SEK (approx. €25,000).
The controller was also ordered to ensure that its processing within the framework of the use of the Google Analytics tool complies with Article 44 GDPR and other provisions under Chapter V GDPR. According to the DPA, this shall be done in particular by ceasing to use of the Google Analytics tool, unless adequate safeguards have been taken.
Comment
See press release from the IMY: https://www.imy.se/nyheter/fyra-bolag-maste-sluta-anvanda-google-analytics/ This complaint is part of noyb's 101 complaints project. This decision was published along with three other decisions. Summaries are available on the hub: Coop, Tele2 and Dagens.
Further Resources
Share blogs or news articles here!
English Machine Translation of the Decision
The decision below is a machine translation of the Swedish original. Please refer to the Swedish original for more details.
1(25)
CDON AB
Box 385
20123 Malmö
Diary number:
DI-2020-11397 Decision after supervision according to
data protection regulation - CDON AB's
Date:
2023-06-30 transfer of personal data to
third country
Content
The Privacy Protection Authority's decision................................................... ............................3
1 Description of the supervisory matter ............................................... .....................................3
1.1 The processing................................................... ............................................3
1.2 What is stated in the complaint............................................. ..............................3
1.3 What CDON has stated............................................. .....................................4
1.3.1 Who has implemented the Tool and for what purpose, etc. ........4
1.3.2 Recipient of the data ............................................. .....................5
1.3.3 The data processed in the Tool and what constitutes it
personal data ................................................ ........................................5
1.3.4 Categories of persons affected by the processing......................5
1.3.5 When the code for the Tool is executed and recipients are provided access .5
1.3.6 How long is the personal data stored............................................ ......5
1.3.7 In which countries the personal data is processed...................................5
1.3.8 CDON's relationship with Google LLC ......................................... ..............6
1.3.9 Ensuring that the processing does not take place for the recipients' own benefit
purpose ................................................ ................................................ .6
1.3.10 Description of CDON's use of the Tool..........................6
1.3.11 Own controls of transfers affected by the judgment Schrems II6
Postal address: 1.3.12 Transfer tool according to chapter V of the data protection regulation .......7
Box 8114
104 20 Stockholm 1.3.13 Control of obstacles to enforcement in legislation in third countries............7
1.3.14 What information is covered by the definition of personal data..........7
Website:
www.imy.se 1.3.15 The effectiveness of protective measures taken by Google and CDON8
E-mail:
imy@imy.se 1.3.16 Taken additional protective measures in addition to those taken by Google
................................................... ................................................... ..............8
Phone:
08-657 61 00
Page 1 of 25The Swedish Privacy Agency Diary number: DI-2020-11397 2(25)
Date: 2023-06-30
1.4 What Google LLC has stated............................................. ............................8
1.5 CDON's comment on Google's opinion............................................ .........10
2 Justification of the decision................................................... ................................................... 10
2.1 The framework for the review............................................... ................................10
2.2 This concerns the processing of personal data............................................. .11
2.2.1 Applicable regulations, etc. ................................................... ...11
2.2.2 The Privacy Protection Authority's assessment...................................12
2.3 CDON is the personal data controller for the processing...................................15
2.4 Transfer of personal data to third countries............................................. ....15
2.4.1 Applicable regulations, etc. ................................................ ...15
2.4.2 The Privacy Protection Authority's assessment...................................17
3 Choice of intervention................................................... ................................................ .......20
3.1 Legal regulation................................................ ..........................................20
3.2 Should a penalty fee be imposed?............................................ ..........................21
3.3 Other interventions................................................... ........................................23
4 Appeal reference ................................................ ..........................................25
4.1 How to appeal .............................................. ........................................25
Page 2 of 25The Swedish Privacy Agency Diary number: DI-2020-11397 3(25)
Date: 2023-06-30
The Privacy Protection Authority's decision
The Swedish Privacy Protection Authority states that CDON AB processes personal data in
violation of Article 44 of the Data Protection Regulation by since August 14, 2020
and until the date of this decision use the Google Analytics tool, which is provided
by Google LLC, on its website www.cdon.fi, thereby transferring
personal data to third countries without the conditions according to chapter V of the regulation being
fulfilled.
The Privacy Protection Authority orders with the support of Article 58.2 d i
data protection regulation CDON AB to ensure that the company's processing of
personal data within the framework of the company's use of the Google Analytics tool
complies with Article 44 and other provisions of Chapter V. This shall especially
happen by CDON AB ceasing to use that version of the tool
Google Analytics as used on August 14, 2020, if not sufficient
protective measures have been taken. The measures must be completed no later than one month after
this decision gained legal force.
IMY decides with the support of article 58.2 and 83 of the data protection regulation that CDON AB
shall pay an administrative sanction fee of SEK 300,000 (three hundred thousand) for
violation of Article 44 of the Data Protection Regulation.
1 Description of the supervisory matter
1.1 The processing
The Swedish Privacy Protection Agency (IMY) has started supervision of CDON AB (below
CDON or the company) due to a complaint. The complaint concerns an alleged
violation of the provisions of Chapter V of the Data Protection Regulation linked to
transfer of the complainant's personal data to third countries. The transfer is alleged to have taken place
when the complainant visited the company's website, www.cdon.fi (hereinafter "the company's website"
or the "Website") through the Google Analytics tool (hereinafter the Tool) which
provided by Google LLC.
The complaint has been handed over to IMY, in its capacity as the responsible supervisory authority according to
Article 56 of the Data Protection Regulation. The handover has taken place from the supervisory authority
in the country where the complainant has filed his complaint (Austria) in accordance with
the regulation's provisions on cooperation in cross-border processing.
The proceedings at IMY have taken place through an exchange of letters. Against the background that it applies
cross-border treatment, IMY has used the mechanisms for cooperation
and uniformity found in Chapter VII of the Data Protection Regulation. Affected
supervisory authorities have been the supervisory authorities in Germany, Norway, Estonia,
Denmark, Portugal, Spain, Finland and Austria.
1.2 What is stated in the complaint
The complaint essentially states the following.
1
regarding the processing of personal data and about the free flow of such data and about the cancellation of avr med
directive 95/46/EC (General Data Protection Regulation).
Page 3 of 25The Swedish Privacy Agency Diary number: DI-2020-11397 4(25)
Date: 2023-06-30
On August 14, 2020, the complainant visited CDON's website. During the visit,
the complainant signed in to his Google account, which is linked to the complainant's email address.
CDON had implemented on its website a Javascript code for Google services,
including Google Analytics. In accordance with clause 5.1.1 b of the terms of Google's
processing of personal data for Google's advertising products and also Google's terms and conditions
for processing "the New Order Data Processing Conditions for Google Advertising
Products" Google processes personal data of the data controller (i.e.
CDON) account and must therefore be classified as the company's personal data assistant.
During the visit to the company's website, CDON processed the complainant's personal data,
at least the complainant's IP address and data collected through cookies. Part of the
the data has been transferred to Google. In accordance with clause 10 of the terms of treatment
of personal data for Google's advertising products, CDON has approved that Google receives
process personal data about the complainant in the United States. Such transfer of data requires
legal support in accordance with chapter V of the data protection regulation.
According to the judgment of the European Court of Justice Facebook Ireland and Schrems (Schrems II), 2
the company no longer relies on a decision on an adequate level of protection in accordance with Article 45 i
data protection regulation for the transfer of data to the United States. CDON should not base
the transfer of data on standardized data protection regulations according to article
46.2 c of the data protection regulation if the recipient country does not ensure adequate protection
with regard to Union law for the personal data that is transferred.
Google shall be classified as a provider of electronic communications services in it
meaning referred to in 50 US Code § 1881 (4)(b) and is thus subject to surveillance
by US intelligence agencies in accordance with 50 US § 1881a (section 702 i
Foreign Intelligence Surveillance Act, hereinafter “702 FISA”). Google provides it
US government with personal data in accordance with these regulations.
CDON cannot therefore ensure adequate protection of the complainant's personal data when
these are transferred to Google.
1.3 What CDON has stated
CDON AB has in opinions on 15 January 2021, 15 February 2022 and 31
August 2022 essentially stated the following.
1.3.1 Who has implemented the Tool and for what purpose, etc.
The code for the Tool was embedded on the Website at the time of the complaint and is
still embedded on the Website. The decision to embed the Tool on
The website was taken over by CDON, a company registered in Sweden. Data is collected from
all people who visit the Website, which probably includes registered users
from more than one EU/EEA member state.
CDON uses the Tool in order to get to know the traffic and uses the Website
in order to be able to make various operationally critical decisions. It is with the help of the Tool e.g.
possible to find out which product categories are most popular and how customers
navigates, partly to find the CDON, partly to complete a purchase.
2 ECJ judgment Facebook Ireland and Schrems (Schrems II), C-311/18, EU:C:2020:559.
3See https://www.govinfo.gov/content/pkg/USCODE-2011-title50/html/USCODE-2011-title50-chap36-subchapVI-
sec1881.htm and https://www.govinfo.gov/content/pkg/USCODE-2011-title50/html/USCODE-2011-title50-chap36-
subchapVI-sec1881a.htm.
Page 4 of 25 The Swedish Privacy Agency Diary number: DI-2020-11397 5(25)
Date: 2023-06-30
1.3.2 Recipient of the data
Within the scope of CDON's use of the Tool on the Website is provided
personal data only to Google.
1.3.3 The data processed in the Tool and what constitutes it
personal data
The information that is processed within the framework of CDON's use of the Tool is
various characteristics or actions taken by the visitor on the website, such as:
1. Which elements the user saw when navigating and looking around
the website,
2. Clicked on an Image/Banner on the Website,
3. Added or removed something to the shopping cart,
4. Arrived at the checkout or completed a purchase,
5. Clicked on suggestions for accessories on product pages or added something to the wish list,
6. If the user is a member of CDON's customer club, as well as
7. Which search string the user used to search internally on the Website.
In addition to this data, Google also gets access to the respective user's IP address.
1.3.4 Categories of persons affected by the processing
The categories of persons affected by the processing are all categories of
people visiting the Website. CDON does not have any option to distinguish if
information about particularly vulnerable persons is processed. This is because CDON only
processes anonymous "behavioral data" regarding how a user navigates
The website. The information processed by CDON is no more than what applies
the actual transmission of the information to Google. CDON can neither before nor after
the disclosure to Google to identify individual users. What a unique category of person
users belong to, CDON is therefore not aware of.
1.3.5 When the code for the Tool is executed and recipients are provided access
Immediately after the Website has finished loading in the user's browser, it has
transmitted information to Google about where the user is on the Website.
Since January 12, 2021, CDON has activated a tool that means that respectively
user consent is required for the Tool's content to be integrated and run in
the user's browser.
1.3.6 How long the personal data is stored
Data and other information are not stored by CDON but are transferred using
The real-time tool from CDON to Google. CDON's assessment is that it
anonymization of IP addresses described below means the data transferred
to Google can no longer be linked to a specific individual and thus is not to be considered
as personal data. At Google, personal data is only stored until the IP-
4
the addresses have been truncated. According to information from Google, the truncation is performed as soon as possible
it is technically possible
1.3.7 In which countries the personal data is processed
The data transferred to the Tool is stored, among other things, in the United States.
4 IP address truncation means that asterisks or zeros replace other digits in the last octets (the last digits of an IP
address, a number between 0 and 255).
Page 5 of 25 The Swedish Privacy Agency Diary number: DI-2020-11397 6(25)
Date: 2023-06-30
1.3.8 CDON's relationship with Google LLC
CDON shares the assessment made by Google regarding the distribution of
the personal data responsibility, which means that Google is considered to process data within the framework
for CDON's use of the Tool as a personal data assistant for CDON. CDON
acts as personal data controller.
The terms that apply to the Tool are partly Google's terms of use, partly Google's
conditions for processing data.
The distribution of personal data responsibility agreed by Google and CDON
stated in the Google Ads Data Processing Terms.
1.3.9 Ensuring that the processing does not take place for the recipients' own purposes
CDON has had no reason to assume that Google does not meet the requirements that follow from the aforementioned
Google Ads Data Processing Terms, why Google's compliance with these not yet
has been further checked by CDON.
1.3.10 Description of CDON's use of the Tool
CDON uses the Tool in order to get to know the traffic on the Website and to
be able to make various business-critical decisions based on that information. It's included
with the help of the Tool, for example, it is possible to find out which product categories are
most popular and how customers navigate the Website to find CDON and for
to complete a purchase.
1.3.11 Own checks on transfers affected by the Schrems II ruling
As a result of the Schrems II judgment, CDON has taken measures in the form of identifying which
of CDON's partners who are located in countries outside the EU/EEA and in
relation to the respective cooperation partners requested information about which additional
security measures they have taken as a result of the decision.
On October 26, 2020, CDON requested information from Google regarding the effect of
CDON's embedding of the code for the Tool on the Website. Google has not
came back with a response to CDON's request for information and CDON has of this
reason, in addition to repeating the request to Google and reminding of answers, searched widely
available information about the actions taken by Google as a result of
the ruling.
According to publicly available information from Google, Google has in addition to
the standard contract clauses have taken the following additional safeguards in relation to
The tool:
• Google ensures a secure transfer of JavaScript libraries and measurement data
using the encryption protocol HTTP HSTS (Strict Transport Security).
• The tool has been certified according to the internationally accepted independent
the safety standards ISO 27001.
In addition to these measures, CDON has also chosen to activate IP-
anonymization, which means that IP addresses are truncated. The IP anonymization
(the truncation) means that the last octet in IPv4 addresses, respectively the last 80
the bits in IPv6 addresses are deleted immediately after the addresses are sent to
the collection network for the Tool. Since CDON's view is that it is IP-
the addresses that result in other data being collected and transmitted using
The tool is to be considered as personal data is CDON's assessment that the truncation
Page 6 of 25 The Swedish Privacy Agency Diary number: DI-2020-11397 7(25)
Date: 2023-06-30
of the IP addresses means that no information transmitted to Google is considered
as personal data after the IP anonymization/truncation has been carried out.
1.3.12 Transfer tool according to chapter V of the data protection regulation
Transfers of personal data to recipients in third countries within the framework of CDON's
use of the Tool is carried out with the support of the European Commission
standard contract clauses (2010/87/EU).
In accordance with the versions of Google's terms for the processing of data that have been
effective since August 12, 2020, Google and CDON have entered into the EU's
standard contractual clauses for the transfer of data from a data controller
within the EU to a personal data processor outside the EU, based on the European Commission's template
2010/87/EU.
1.3.13 Control of obstacles to enforcement in legislation in third countries
In order to ensure that the contractual obligations in the standard contract clauses are fulfilled have
CDON sent the request for information to Google regarding the third country transfer
as described above and CDON has not received a response.
1.3.14 What information is covered by the definition of personal data
It is important to distinguish between the concepts of being able to distinguish between users and not being able to
identify a specific individual. The latter, identification of a specific individual is not
the purpose of using the Tool and it is also not possible with that information
which is collected by unique identifier(s) (which can be derived to the browser or
entity (ie CDON's Google Analytics account ID)) either alone or in combination
with, among other things, the information generated when visiting the Website (i.e.
Web address (URL) and HTML title of that Web site or information about
browser). CDON is of the firm opinion that IP addresses are necessary
to, among other things, process the information generated when visiting the Website
(ie web address (URL) and HTML title of that Website or information about
browser) can be considered to constitute personal data. CDON white words to dynamic
IP addresses under certain circumstances may be considered personal data. The
distinguishing users made possible by the information collected by
however, unique identifier(s) is not sufficient for a specific individual to be able to
is identified, with or without aids such as thinning, but it is
only in combination with a full IP address as the information collected
of unique identifier(s) and information generated when visiting the Website can
will constitute personal data.
Justices Breyer and M.I.C.M. provides support for the assessment that dynamic IP addresses i
all cases are to be regarded as personal data. Dynamic IP addresses according to EU
the court must be considered as personal data in relation to the supplier concerned
of information or communication services, not in relation to each actor who receives
access to an IP address. In the Breyer case regarding the assessment of which aids
which can reasonably be used to identify the person in question,
the EU Court judged that according to German law there were legal means that make this possible
for the provider of electronic information or communication services, that in particular
in case of IT attacks, contact the competent authority for action
necessary measures to obtain such information from the internet provider and
initiate criminal proceedings. It can be questioned about an American authority
with a truncated IP address, which can be one of 256 alternative IP addresses, has
5 ECJ judgment Breyer, C-582/14, EU:C:2016:779.
6 ECJ judgment M.I.C.M, C-597/19, EU:C:2021:492.
Page 7 of 25 The Swedish Privacy Agency Diary number: DI-2020-11397 8(25)
Date: 2023-06-30
such legal means as may reasonably be used to enable
the identification of a single individual, when in the Breyer case it was even considered
problematic with a full IP address relative to the actual provider
of the natural person's IT services.
1.3.15 Effectiveness of safeguards taken by Google and CDON
Referring to the answers above, CDON, in addition to the activation of IP-
the anonymization, not considering the implementation of supplementary measures because
Google has informed that additional measures have been taken.
The truncation of the IP addresses is an effective protection measure. Regardless of the truncation of
The IP addresses occur before, in connection with, or in direct connection with the transfer of
the information from CDON to Google. The truncation of the IP addresses means that
the information stored on Google's servers in the United States does not constitute personal data. In a
situation where the truncation is only carried out when the data has been received by Google
LCC, but at the latest in direct connection with the reception, the truncation means that all
data that has been transferred by CDON to Google and that is stored on Google's servers
will not constitute personal data because the IP address, which is the unique one
identifiers which mean that other transmitted information constitutes personal data, has
anonymized. IP address without the last octet can be any of 256 alternatives
IP addresses and therefore cannot a truncated IP address by thinning together
with other information, is considered to constitute personal data.
1.3.16 Additional safeguards taken in addition to those taken by Google
During the handling of the case, CDON has thoroughly analyzed and investigated the possibilities
to switch to another solution that does not involve the use of the Tool. Coop has
made preparations for such a change, which the company should hopefully be able to do
execute promptly in case the IMY's final decision involves a finding that
The tool is not compatible with the data protection regulation and this gains legal force. The
however, it must be emphasized that CDON's analysis shows that such a change will
be very burdensome for the company (especially in comparison to other players on
the market) why it cannot be implemented before there is clarity in relation to what
that applies to the Tool regarding what is a sufficient protective measure.
1.4 What Google LLC has stated
IMY has added to the case an opinion from Google LLC (Google) on April 9, 2021 which
Google submitted to the Austrian supervisory authority. The statement answers questions
which IMY and a number of supervisory authorities have asked Google due to in part
joint handling of similar complaints received by these authorities.
CDON has been given the opportunity to comment on Google's opinion. By Google's opinion
the following appears about the Tool.
A JavaScript code is included on a web page. When a user visits (calls) a
web page, the code triggers a download of a JavaScript file. Then performed
the tracking operation of the Tool, which consists of collecting information related to
to the call in different ways and send the information to the Tool's servers.
A website administrator who has integrated the Tool on his website can send
instructions to Google for processing the data collected. These
instructions are transmitted via the so-called tag manager that handles it
tracking code that the webmaster has integrated into his website and via
Page 8 of 25 The Swedish Privacy Agency Diary number: DI-2020-11397 9(25)
Date: 2023-06-30
tag manager settings. Whoever integrated the Tool can do different things
settings, for example regarding storage time. The tool also makes it possible for it
which integrated it to monitor and maintain the stability of its website,
for example by staying informed about events such as peaks in visitor traffic
or lack of traffic. The tool also enables a website administrator to
measure and optimize the effectiveness of advertising campaigns carried out using
other tools from Google.
In this context, the Tool collects the visitor's http calls and information about
including the visitor's browser and operating system. According to Google, contains one
http calls for any page information about the browser and device making
the call, such as domain name, and information about the browser, such as type,
reference and language. The tool stores and reads cookies in the visitor's browser in order to
evaluate the visitor's session and other information about the call. Through these
cookies enable the Tool to identify unique users (UUID) over
browsing sessions, but the Tool cannot identify unique users in different browsers
or units. If a website owner's website has its own authentication system
can the website owner use the ID feature, to more accurately identify one
users on all the devices and browsers they use to access
the website.
When the information is collected, it is transferred to the Tool's servers. All data that
collected via The tool is stored in the United States.
Google has introduced, among other things, the following legal, organizational and technical
protective measures to regulate data transfers within the framework of the Tool.
Google has taken legal and organizational protective measures such that the company
always carry out a thorough examination of a request for access from government
authorities on user data can be implemented. It is lawyers/specially trained
staff conducting these trials and investigating whether such a request is
compliant with applicable laws and Google's guidelines. Those registered are informed
the disclosure, unless prohibited by law or would adversely affect one
emergency. Google has also published a policy on the company's website about how a
such requests for access by governmental authorities of user data shall be implemented.
Google has taken technical protective measures such as protecting personal data from
interception when transferring data in the Tool. By default using HTTP
Strict Transport Security (HSTS), which instructs browsers as http to SSL (HTTPS)
to use an encryption protocol for all communications between end users,
websites and the Tool's servers. Such encryption prevents intruders from
passively listen to communications between websites and users.
Google also uses an encryption technology to protect personal data, so-called “data in
rest" ("data at rest") in data centers, where user data is stored on a disk or
backup media to prevent unauthorized access to the data.
In addition to the above measures, website owners can use IP anonymization through
to use the settings provided by the Tool to limit Google's
use of personal data. Such settings include above all that in the code
for the Tool enable IP anonymization, which means that IP addresses are truncated and
contributes to data minimization. If the IP anonymization service is fully used occurs
the anonymization of the IP address almost immediately after the request has been received.
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Date: 2023-06-30
Google also restricts access to the data from the Tool through authorization control
as well as by all personnel having undergone training regarding
information security.
1.5 CDON's comment on Google's statement
CDON maintains what was stated in the opinion of 15 January 2021. In addition to this
presents the following to CDON in connection with Google's statement of April 9, 2021.
In its use of the Tool, CDON has taken the security measures that the Tool
provides.
Google's opinion states, among other things, the following:
"As a general matter, unless instructed to do so, Google does not attempt to link
data it collects as a processor on behalf of website owners using Google Analytics
with data it collects as a controller in relation to its users and the relevant policies
and systems are designed to avoid such linking.”
Google thus states that the owner of the website has full control over the personal data
which Google processes in that there is an opportunity for users of the Tool to
give Google special instructions on connecting the personal data with
user. CDON has not given Google any such instructions.
CDON has instead focused on using the settings as the Tool
provides to limit Google's use of personal data. Such
settings include, above all, activating IP anonymization in the code of the Tool,
which means that IP addresses are truncated. CDON had also limited the storage time for
the personal data and has not activated the User-ID function either. So CDON has
unable to link a fixed ID for a single user to the user's
engagement data from one or more sessions initiated from one or more
units.
In summary, CDON maintains that the use of the Tool has taken place in accordance
with the security measures that the Tool offers. It should also be noted that
obligations according to chapter V of the data protection regulation primarily are obligations which
is imposed on the exporter, who in this case is CDON's dealer (see EDPB's guidelines
05/2021 and decision of the Austrian data protection authority regarding Google Analytics i
target 2021-0.586.257 (D155.027)).
2 Justification of the decision
2.1 The framework for the review
Based on the complaint in the case, IMY has only examined whether CDON transfers
personal data to the third country USA within the framework of the Tool and if CDON has
legal support for it in Chapter V of the Data Protection Regulation. The supervision does not cover if
CDON's personal data processing in general is compatible with the data protection regulation.
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Date: 2023-06-30
2.2 This concerns the processing of personal data
2.2.1 Applicable regulations, etc.
In order for the data protection regulation to be applicable, it is required that personal data
treated.
According to Article 1.2, the Data Protection Regulation aims to protect the data of natural persons
fundamental rights and freedoms, in particular their right to the protection of personal data.
According to Article 4.1 of the regulation, personal data is "any information relating to a
identified or identifiable natural person (hereinafter referred to as a data subject), whereby a
identifiable natural person is a person who can be directly or indirectly specifically identified
referring to an identifier such as a name, an identification number, a
location data or online identifiers or one or more factors that are
specific to the natural person's physical, physiological, genetic, psychological,
economic, cultural or social identity'. To determine whether a natural person is
identifiable, one should consider all the aids that, either of it
personal data controller or by another person, may reasonably be used
to directly or indirectly identify the natural person (reason 26 to
data protection regulation).
The term personal data can include all information, both objective and
subjective information, provided that it "refers" to a specific person, which
7
they do if, due to their content, purpose or effect, they are linked to the person.
The word "indirectly" in Article 4.1 of the Data Protection Regulation indicates that it is not necessary
that the information itself makes it possible to identify the registered person for that to be
a personal data. Recital 26 of the data protection regulation also states that in order to
determine whether a natural person is identifiable, all aids, such as e.g. thinning
("singling out" in the English language version), which, either of it
personal data controller or by another person, may reasonably be used
to directly or indirectly identify the natural person, is taken into account. To determine
if aids can with reasonable probability be used to identify it
the natural person should all objective factors, such as costs and time consumption for
identification, taking into account both available technology at the time of processing,
considered. It is clear from Article 4.5 of the regulation that pseudymisation is meant
processing of personal data in a way that means that the personal data does not
longer can be attributed to a specific data subject without the use of supplementary information,
provided that this additional information is kept separately and is subject
for technical and organizational measures that ensure that the personal data does not
attributed to an identified or identifiable natural person.
So-called "web identifiers" (sometimes referred to as "online identifiers") - e.g. IP addresses or
information stored in cookies – can be used to identify a user,
especially when combined with other similar types of information. According to recital 30 to
data protection regulation, natural persons can be linked to online identifiers provided by
their equipment, e.g. IP addresses, cookies or other identifiers. This can leave behind
traces that, especially in combination with unique identifiers and other data such as
collected, can be used to create profiles of natural persons and identify them.
In the Breyer judgment, the European Court of Justice has determined that a person is not considered identifiable through
some information about the risk of identification in practice is negligible, which it is
7 ECJ judgment Nowak, C-434/16, EU:C:2017:994, paragraphs 34–35.
8 CJEU judgment Breyer, C-582/14, EU:C:2016:779, paragraph 41.
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Date: 2023-06-30
identification of the relevant person is prohibited by law or impossible to carry out i
practice. However, the European Court of Justice has in the judgment M.I.C.M. from 2021 and in the judgment Breyer struck
provided that dynamic IP addresses constitute personal data in relation to the person who
processes them, when he also has a legal opportunity to identify the holders of
the internet connections using the additional information provided by third parties
10
dispose of.
2.2.2 The Privacy Protection Authority's assessment
To determine whether the information processed through the Tool constitutes personal data
shall IMY decide whether Google or CDON through the implementation of the Tool
can identify individuals, e.g. the complainant, when visiting the Website or about the risk of
it is negligible. 11
IMY considers the data processed to be personal data for the following reasons.
The investigation shows that CDON implemented the Tool by inserting a
JavaScript code (a tag), entered by Google in the source code of the Website. While
the page is loaded in the visitor's browser, the JavaScript code from Google LLC's is loaded
servers and run locally in the visitor's browser. A cookie is inserted at the same time
the visitor's browser and saved on the computer. The cookie contains a text file that collects
information about the visitor's operation on the Website. Among other things, a
unique identifier in the value of the cookie and this unique identifier is generated and
managed by Google.
When the complainant visited the Website, or a sub-page of the Website, was transmitted
the following information via JavaScript code from the complainant's browser to Google
LLC's servers:
1. Unique identifier(s) that identified the browser or device used
to visit the Website as well as a unique identifier that identifies the CDON
(ie CDON's Google Analytics account ID).
2. Web address (URL) and HTML title of the website and web page that
the appellant has visited.
3. Information about browser, operating system, screen resolution,
language setting and date and time of access to the Website.
4. Complainant's IP address.
During the appellant's visit (according to point 1 above) said identifier was put in cookies with
the names "_gads", "_ga" and "_gid" and subsequently transferred to Google LLC. These
identifiers have been created with the aim of being able to distinguish individual visitors, such as
the appellant. The unique identifiers thus make the visitors to the Website
identifiable. Although such unique identifiers (as per 1 above) would not in themselves be considered
make individuals identifiable, however, it must be considered that these unique identifiers in it
the current case can be combined with additional elements (according to points 2-4 above)
and that it is possible to draw conclusions in relation to information (according to the points
2–4 above) which means that information constitutes personal data, regardless of whether the IP address is not
transferred in its entirety.
9 CJEU judgment Breyer, C-582/14, EU:C:2016:779, paras 45–46.
10 ECJ judgment M.I.C.M, C-597/19, EU:C:2021:492, paragraphs 102–104 and Breyer judgment, C-582/14,
EU:C:2016:779, paragraph 49.
11 See the Court of Appeal in Gothenburg's judgment of 11 November 2021 in case no. 2232-21, with the agreement of the sub-instance
assessment.
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Date: 2023-06-30
If information is combined (according to points 1–4 above), it means that individual visitors on
The site becomes even more distinguishable. It is thus possible to identify
individual visitors of the Website. That in itself is enough for it to be considered
personal data. It does not require knowledge of the actual visitor's name or
physical address, because the differentiation (through the word "thinning" in recital 26 i
data protection regulation, "singling out" in the English version) in itself is sufficient for
to make the visitor indirectly identifiable. It is also not required to Google or CDON
intends to identify the appellant, but the opportunity to do so is in itself sufficient
to determine whether it is possible to identify a visitor. Objective aids such as
can reasonably be used either by the personal data controller or by someone
other, are all aids that can reasonably be used for the purpose of identifying the appellant.
Examples of objective aids that can reasonably be used are access to additional
information with a third party that would make it possible to identify the complainant with
taking into account both available technology at the time of identification as well as cost
(the time required) for the identification.
IMY states that the European Court of Justice, through the judgment M.I.C.M. and the Breyer ruling stated that
dynamic IP addresses constitute personal data in relation to the person who processes them,
when he also has a legal opportunity to identify the holders of
the internet connections using the additional information provided by third parties
dispose of. IP addresses do not lose their character of being personal data alone
due to the fact that the means of identification are with third parties. The Breyer ruling and
The M.I.C.M judgment should be interpreted based on what is actually stated in the judgments ie. that about it
there is a legal possibility to gain access to supplementary information for the purpose of
identify the appellant it is objectively clear that there is a “means which reasonably can
will be used' to identify the complainant. According to IMY, the judgments should not be read
on the contrary, in the way that a legally regulated possibility to gain access must be demonstrated
to data that can link IP addresses to natural persons so that the IP addresses will
considered to be personal data. An interpretation of the concept of personal information which means that
it must always be demonstrated a legal possibility to link such data to a physical
person would, according to IMY, mean a significant limitation of the regulation
protection area, and open up possibilities to circumvent the protection in the regulation. This one
interpretation would, among other things, be contrary to the purpose of the regulation according to Article 1.2 i
data protection regulation. The Breyer judgment was decided under previously applicable directives
95/46 and the concept of "singling out" according to recital 26 of the current regulation (that it does not
knowledge of the actual visitor's name or physical address is required, because
the distinction itself is sufficient to make the visitor identifiable), was not specified in
previously applicable directives as a method for identifying personal data.
In this context, other information is also added (according to points 1–3 above) such as IP
the address can be combined with to enable identification. Google action
regarding truncation of an IP address means that it is still possible to distinguish IP-
the address, as it can be combined with other data transferred to
third country (to the USA). This enables identification, which in itself is sufficient to
the data together shall constitute personal data.
12 ECJ judgment M.I.C.M, C-597/19, EU:C:2021:492, paragraphs 102–104 and Breyer judgment, C-582/14
EU:C:2016:779, paragraph 49.
13 IP address truncation means that asterisks or zeros replace other digits in the last octets (the last digits of an IP
address, a number between 0 and 255), which itself can only be one of 256 options. The effect of this action
means that it is still possible to distinguish the IP address from the other IP addresses (255 options), because the IP
the address can be linked with other transferred data (e.g. information about unit and time of visit) to
third country.
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Date: 2023-06-30
In addition, several other supervisory authorities within the EU/ESS have decided that the transfer of
personal data to third countries has occurred when using the Tool because it
it has been possible to combine IP addresses with other data (according to points 1–3
above), and thus enabled differentiation of data and identification of IP address,
which in itself is sufficient to determine that it is a matter of treatment of
14
personal data.
IMY notes that there may also be reasons to compare IP addresses with
pseudonymised personal data. Pseudonymization of personal data means
according to article 4.5 of the data protection regulation that the data - similar to dynamic IP
addresses - cannot be directly attributed to a specific data subject without supplementary
data is used. According to recital 26 of the data protection regulation, such data should
considered to be information about an identifiable natural person.
A narrower interpretation of the concept of personal data would undermine, according to IMY
the scope of the right to the protection of personal data, which is guaranteed in Article 8 i
The Charter of Fundamental Rights of the European Union, because it would
make it possible for personal data controllers to specifically single out individuals together
with personal data (eg when they visit a certain website) at the same time as individuals
are denied the right to protection against the dissemination of such information about them. Such an interpretation would
undermine the level of protection for individuals and would not be compatible with the wide
scope given by the data protection rules in the practice of the EU Court of Justice. 15
CDON has also, by the appellant being logged in to his Google account at
the visit to the Website, processed information where conclusions could be drawn about it
individual based on their registration with Google. It appears from Google's statement that
implementation of the Tool on a website makes it possible to obtain information about
a user of a Google account (ie a registrant) has visited the website in
question. Google does state that certain conditions must be met for Google to
be able to receive such information, e.g. that the user (complainant) has not deactivated
processing and display of personal advertisements. Because the appellant was logged in
in their Google account when visiting the Website, Google can therefore still have
had the opportunity to receive information about the logged-in user's visits to
The website. The fact that it does not appear from the complaint that no personal
ads have been shown, does not mean that Google cannot obtain information about the logged in person
the user's visit to the Website.
IMY finds against the background of the unique identifiers that can identify the browser
or the device, the ability to derive the individual through his Google account, they
the dynamic IP addresses as well as the possibility to combine these with additional ones
information that CDON's use of the Tool on a web page involves processing
of personal data.
1Austrian supervisory authority (Datenschultzbehörde) decision of 22 April 2022 regarding complaints Google
Analytics represented by NOYB with local case number 1354838270, French regulatory authority (CNIL) decision
of February 10, 2022 represented by NOYB and the Italian Supervisory Authority (Garante) decision of June 9, 2022
regarding complaint Google Analytics represented by NOYB, local case number 9782890.
1 See, for example, the judgment of the European Court of Justice Latvijas Republikas Saeima (Points de pénalité), C-439/19, EU:C:2021:504,
paragraph 61, judgment Nowak, C-434/16, EU:C:2017:994, paragraph 33 and judgment Rijkeboer, C-553/07, EU:C:2009:293, paragraph 59.
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Date: 2023-06-30
2.3 CDON is the personal data controller for the processing
Personal data controller is, among other things, a legal person who alone or
together with others determines the purposes and means of the processing of
personal data (Article 4.7 of the Data Protection Regulation). Personal data assistant is among
another, a legal entity that processes personal data for it
account of the personal data controller (Article 4.8 of the data protection regulation).
The responses provided by CDON show that CDON has made the decision to implement
The tool on the Website. Furthermore, it appears that CDON's purpose for this was to
the company must be able to analyze how the Website is used, in particular to be able to follow
the use of the website over time.
IMY finds that CDON by deciding to implement the Tool on the Website i
said purpose has established the purposes and means of the collection and it
the subsequent transfer of this personal data. CDON is therefore
personal data controller for this processing.
2.4 Transfer of personal data to third countries
The investigation shows that the data collected via the Tool is stored by Google
LLC in the United States. Thus, the personal data collected via the Tool is transferred to the United States.
The question is therefore whether CDON's transfer of personal data to the USA is compatible with
Article 44 of the Data Protection Regulation and has legal support for it in Chapter V.
2.4.1 Applicable regulations, etc.
According to article 44 of the data protection regulation, which has the title "General principle for
transfer of data", includes the transfer of personal data that is under
processing or are intended to be processed after they have been transferred to a third country -
i.e. a country outside the EU/EEA - only take place under the condition that it
personal data controller and the personal data assistant, subject to others
provisions of the data protection regulation, meet the conditions in chapter V. All
provisions of said chapter shall be applied to ensure that the level of protection
of natural persons ensured by the data protection regulation is not undermined.
Chapter V of the data protection regulation contains tools that can be used for transfers
to third countries to ensure a level of protection essentially equivalent to that which
guaranteed within the EU/EEA. It can e.g. be transfer supported by a decision on
adequate level of protection (Article 45) and transfer covered by appropriate
protective measures (Article 46). There are also exceptions for special situations (Article 49).
In the judgment Schrems II, the Court of Justice of the European Union has annulled that decision on adequacy
level of protection that previously applied to the United States. Because a decision on adequate
level of protection since July 2020 is missing, transfers to the US may not be based on Article 45.
Article 46.1 provides, among other things, that in the absence of a decision in accordance with Article
45.3 a personal data controller or a personal data assistant may only transfer
personal data to a third country after taking appropriate safeguards, and on
16 Commission Implementing Decision (EU) 2016/1250 of 12 July 2016 in accordance with the European Parliament and
Council Directive 95/46/EC on whether adequate protection is ensured by the Privacy Shield in
The European Union and the United States and the judgment of the European Court of Justice Facebook Ireland and Schrems (Schrems II), C-
311/18, EU:C:2020:559.
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Date: 2023-06-30
conditions that statutory rights of registered and effective remedies for
registered are available. Article 46.2 c stipulates that such suitable
safeguards may take the form of standardized data protection regulations adopted
by the Commission in accordance with the review procedure referred to in Article 93(2).
In the judgment Schrems II, the European Court of Justice did not reject standard contract clauses which
transfer tool. However, the court found that they are not binding on
the authorities of the third country. The Court of Justice of the European Union stated that “[even] if thus
there are situations where the recipient of such a transfer, depending on the legal situation and
current practice in the third country concerned, can guarantee the necessary protection of
data solely with the support of the standardized data protection regulations, exists
the other situations in which the provisions of these clauses cannot be one
sufficient means to ensure effective protection of the personal data in practice
which is transferred to the third country concerned.' According to the European Court of Justice, this is "among other things
the case when the legislation of the third country allows the authorities of that third country to do
interference with the rights of the registered persons regarding these data.” 17
The reason why the European Court of Justice annulled the decision on adequate level of protection
with the US was how the US intelligence agencies can access
personal data. According to the court, the conclusion of standard contract clauses cannot in itself
ensure a level of protection required by Article 44 of the Data Protection Regulation,
as the guarantees stated therein do not apply when requested by such authorities
access. The European Court of Justice therefore stated the following:
It thus appears that the standardized data protection provisions which
the commission adopted with the support of article 46.2 c of the same regulation only aims to
provide the personal data controllers or their personal data assistants established
in the Union contractual safeguards that are applied uniformly throughout
third countries and thus independent of the level of protection ensured in each of
these countries. Because these standardized data protection regulations, with regard
to their nature, cannot lead to protective measures that go beyond a contractual obligation
to ensure that the level of protection required under Union law is observed, it may be
necessary, depending on the situation prevailing in a particular third country, for it
personal data controller to take additional measures to ensure that the level of protection
18
observed.
In the European Data Protection Board's (EDPB) recommendations on the consequences of
the judgment clarifies that if the assessment of legislation and practice in the third country involves
that the protection that the transmission tool is supposed to guarantee cannot be maintained in practice
the exporter must, within the framework of his transfer, as a rule either cancel
the transfer or take appropriate additional protective measures. The EDPB thereby notes
that "further measures can only be considered effective in the sense referred to in the EU
the court's judgment "Schrems II" if and to the extent that they - alone or in combination -
addresses the specific deficiencies identified during the assessment of the situation i
the third country in terms of its laws and practices applicable to the transfer”. 20
17
18 Paragraphs 125-126.
19 Item 133.
EDPB, Recommendations 01/2020 on measures that supplement transfer tools to ensure compliance with the EU
level of protection of personal data, Version 2.0, adopted on 18 June 2021 (hereinafter "EDPB's Recommendations
01/2020”).
20EDPB's Recommendations 01/2020, point 75; IMY's translation.
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Date: 2023-06-30
It appears from the EDPB's recommendations that such additional protective measures can
21
fall into three categories: contractual, organizational and technical.
Regarding contractual measures, the EDPB states that such measures “[...] can
supplement and reinforce the safeguards that the transfer tool and relevant
legislation in the third country provides [...]. Considering that the contractual
the measures are of such a nature that they cannot generally bind the authorities in it
the third country because they are not parties to the agreement, these measures may often be necessary
combined with other technical and organizational measures to provide it
level of data protection required [...]'. 22
Regarding organizational measures, the EDPB emphasizes “[a]t choose and implement a
or more of these measures will not necessarily and systematically
ensure that [a] transfer meets the basic equivalence standard which
required by EU legislation. Depending on the particular circumstances surrounding
the transfer and the assessment made by the law of the third country is required
organizational measures to supplement contractual and/or technical measures
to ensure a level of protection for personal data that is substantially equivalent to that
which is guaranteed within the EU/EEA”. 23
Regarding technical measures, the EDPB points out that “these measures will in particular
be necessary when the legislation of that country imposes obligations on the importer which
contravenes the guarantees in Article 46 of the Data Protection Regulation transfer tools and
which in particular may infringe upon the contractual guarantee of one in all essentials
equivalent protection against the authorities of the third country gaining access to these
24
tasks". The EDPB thereby states that "the measures specified [in the Recommendations]
are intended to ensure that access to the transmitted data for public
authorities in third countries do not interfere with the expediency of the appropriate
the safeguards in Article 46 of the Data Protection Regulation transfer tools. These
measures would be necessary to guarantee a substantially equivalent
level of protection as that guaranteed within the EU/EEA, even if the public ones
access by the authorities is consistent with the legislation of the importer's country, where such
access in practice goes beyond what is necessary and proportionate in one
democratic society. The purpose of these measures is to prevent potentially unauthorized
access by preventing the authorities from identifying the registered, drag
conclusions about them, point them out in another context or connect the transmitted ones
the data to other data sets which, among other things, may contain network identifiers such as
provided by the devices, applications, tools and protocols used by
25
registered in other contexts".
2.4.2 The Privacy Protection Authority's assessment
2.4.2.1 Applicable Transfer Tool
The investigation shows that CDON and Google have entered into standardized agreements
data protection regulations (standard contract clauses) in the sense referred to in Article
46 for the transfer of personal data to the United States. These clauses are in line with those which
published by the European Commission in decision 2010/87/EU and therefore one
transfer tools according to chapter V of the data protection regulation.
21
22EDPB's Recommendations 01/2020, point 52.
EDPB's Recommendations 01/2020, point 99; IMY's translation.
23EDPB's Recommendations 01/2020, point 128; IMY's translation.
24EDPB's Recommendations 01/2020, point 77; IMY's translation.
25 EDPB's Recommendations 01/2020, point 79; IMY's translation.
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Date: 2023-06-30
2.4.2.2 The legislation and the situation in the third country
As can be seen from the judgment Schrems II, the use of standard contract clauses may require
additional protective measures as a complement. Therefore, an analysis of
the legislation in the relevant third country is made.
IMY believes that the analysis that the EU Court has already done in the judgment Schrems II, which
relates to similar conditions, is relevant and current, and that it can therefore be added
basis for the assessment in the case without any further analysis of the legal
the situation in the United States needs to be done.
Google LLC, as the importer of the data to the United States, shall be classified as
provider of electronic communications services within the meaning of 50 US
Code § 1881 (b)(4). Google is therefore subject to surveillance by American
intelligence services in accordance with 50 US § 1881a (“702 FISA”) and thus liable
to provide the US government with personal data when 702 FISA is used.
The European Court of Justice found in the judgment Schrems II that the American
surveillance programs based on 702 FISA, Executive Order 12333
(hereinafter “E.O. 12333”) and Presidential Policy Directive 28 (hereinafter “PPD-28”) in the
American legislation does not correspond to the minimum requirements that apply in EU law
according to the principle of proportionality. This means that the monitoring programs that are established
on these provisions cannot be considered to be limited to what is strict
necessary. The court also found that the monitoring programs do not provide
the registered rights enforceable against US authorities i
26
court, which means that these people do not have the right to an effective remedy.
Against this background, IMY notes that the use of the EU Commission's
standard contract clauses are not in themselves sufficient to achieve an acceptable level of protection
for the transferred personal data.
2.4.2.3 Additional safeguards implemented by Google and CDON
The next question is whether CDON has taken sufficient additional safeguards.
As a personal data controller and exporter of the personal data, CDON is obliged to
ensure that the rules of the data protection regulation are complied with. This responsibility includes, among other things
to assess in each individual case when transferring personal data to third countries which
additional safeguards to be used and to what extent, including that
evaluate if the actions taken by the receiver (Google) and the exporter (CDON)
taken together are sufficient to achieve an acceptable level of protection.
2.4.2.3.1 Google's additional safeguards
Google LLC, as an importer of personal data, has taken contractual,
organizational and technical measures to complement the standard contract clauses.
In a statement on April 9, 2021, Google described that the company has taken measures.
The question is about the additional safeguards taken by CDON and Google LLC
are effective, in other words hindering US intelligence agencies' ability to
access the transferred personal data.
As regards the legal and organizational measures, it can be stated that neither
information to users of the Tool (such as CDON), the publication of a
26Items 184 and 192. Item 259 et seq.
27Regardless of whether such a notification would even be permissible under US law.
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Date: 2023-06-30
transparency report or a publicly available “Government Request Handling Policy”
impedes or reduces the ability of US intelligence agencies to obtain
access to the personal data. Furthermore, it is not described what it means to
Google LLC's makes a "careful review of each request" for the "legality" of
US intelligence services. IMY notes that this does not affect the legality of
such requests because, according to the European Court of Justice, they are not compatible with the requirements of
EU data protection rules.
As regards the technical measures taken, it can be stated that neither
Google LLC or CDON has clarified how the described measures – such as protection of
communication between Google services, protection of data during transfer between
data center, protection of communications between users and websites or “physical
security” – hinders or reduces the ability of US intelligence agencies to
prepare access to the data with the support of the US regulations.
Regarding the encryption technology used – for example for so-called "data at rest"
("data at rest") in data centers, which Google LLC mentions as a technical measure - has Google
LLC as an importer of personal data nevertheless an obligation to grant access to or
hand over imported personal data at the disposal of Google LLC, including
any encryption keys required to make the data intelligible. Thus
such a technical measure cannot be considered effective as long as Google LLC has
possibility to access the personal data in plain text.
Regarding what Google LLC's stated that "to the extent information for measurement i
Google Analytics transmitted by website owners constitutes personal data, they receive
considered to be pseudonymized” it can be stated that universal unique identifiers
(UUID) is not covered by the concept of pseudonymisation in Article 4.5 i
data protection regulation. Pseudonymization can be a privacy-enhancing technique,
but the unique identifiers, as described above, have the specific purpose of distinguishing
user and not to act as protection. In addition, individual identifiable genomes are made
what is stated above about the possibility of combining unique identifiers and others
data (eg metadata from browsers or devices and the IP address) and
the ability to link such information to a Google account for logged-in users.
Regarding Google's measure "anonymization of IP addresses" in the form of truncation 29
it is not clear from Google's response if this action takes place before the transfer, or if
the entire IP address is transferred to the USA and shortened only after the transfer to the USA. From
from a technical point of view, it has thus not been shown that there is no potential access to the whole
The IP address before the last octet is truncated.
Against this background, IMY notes that the additional protective measures taken
of Google are not effective, because they do not prevent American
intelligence services' ability to access the personal data or does so
access ineffective.
2.4.2.3.2 CDON's own additional safeguards
CDON has stated that the company has taken additional protective measures in addition to those
actions taken by Google. According to CDON, these consist of activation of
2See EDPB's Recommendations 01/2020, point 81.
2IP address truncation means that asterisks or zeros replace other digits in the last octets (the last digits of an IP
address, a number between 0 and 255).
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Date: 2023-06-30
the function for truncation 30of the last octet in IP address before the data is transferred to
Google, which means masking the last octet. 31
As stated above regarding Google's measures, it is not clear from Google's response whether
this action occurs before the transfer or if the entire IP address is transferred to the United States and
truncated only after the transfer to the United States. From a technical point of view, it has thus not
shown that after the transfer there is no potential access to the entire IP address before
the last octet is truncated.
Even if the truncation were to occur before the transfer, it is not a sufficient measure,
because the truncated IP address can be combined with other data,
as IMY stated above in section 2.2.2. A truncation of an IP address means that
only the last octet is masked, which itself can only be one of 256 options
(ie in the range 0-255) and because the truncated IP address is distinguishable
from other IP addresses, this data can be combined with other data (according to
above in section 2.2.2) and enable identification, which in itself is sufficient to determine
if the data together constitute personal data. Although the masking of last
the octet constitutes an integrity-enhancing measure, as it limits the scope of de
information to which authorities can gain access (in third countries), IMY states that it nevertheless
can connect the transferred data to other data that is also transferred to
Google LLC (in third countries).
Against this background, IMY notes that neither the additional measures which
taken by CDON in addition to the additional measures taken by Google is sufficient
effective in preventing US intelligence agencies from accessing
the personal data or render such access ineffective.
2.4.2.3.3 The Privacy Protection Authority's conclusion
The IMY finds that CDON's and Google's actions are neither individually nor collectively
effective enough to prevent US intelligence agencies from obtaining
access to the personal data or render such access ineffective.
Against this background, IMY finds that neither standard contract clauses nor the others
measures invoked by CDON may provide such support for the transfer as specified in Chapter
V in the data protection regulation.
With this transfer of data, CDON therefore undermines the level of protection for
personal data of data subjects guaranteed in Article 44 of the Data Protection Regulation.
IMY therefore notes that CDON AB is in breach of Article 44 of the data protection regulation.
3 Choice of intervention
3.1 Legal regulation
In the event of violations of the data protection regulation, IMY has a number of corrective measures
powers to be available according to Article 58.2 a–j of the data protection regulation, among other things
reprimand, injunction and penalty fees.
30 IP address truncation means that asterisks or zeros replace other digits in the last octets (the last digits of an IP
address, a number between 0 and 255).
31 See above in the section on what CDON has stated, under the heading "Additional protective measures taken".
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Date: 2023-06-30
IMY shall impose penalty fees in addition to or in lieu of other corrective measures
as referred to in Article 58(2), depending on the circumstances of each individual case.
Each supervisory authority must ensure that the imposition of administrative
penalty charges in each individual case are effective, proportionate and dissuasive. The
stated in Article 83.1 of the Data Protection Regulation.
In article 83.2 of the data protection regulation, the factors that must be considered in order to
decide whether an administrative penalty fee should be imposed, but also at
the determination of the amount of the penalty fee. If it is a question of a smaller one
breach will receive the IMY as set out in recital 148 instead of imposing a
penalty fee issue a reprimand according to article 58.2 b of the regulation. Consideration shall
in the assessment, aggravating and mitigating circumstances in the case are taken into account, such as
the nature, severity and duration of the breach and previous breaches of
relevance.
The EDPB has adopted guidelines on the calculation of administrative penalty fees according to
the data protection regulation which aims to create a harmonized method and principles
for calculation of penalty fees. 32
3.2 Should a penalty fee be imposed?
IMY has found above that the transfers of personal data to the USA that take place via
The Google Analytics tool and which CDON is responsible for violations of Article 44 i
data protection regulation. Violations of that provision can according to Article 83
incur penalty charges.
In light of, among other things, the fact that CDON transferred a large amount of personal data, that
the processing has been going on for a long time and that the transfer meant that
the personal data could not be guaranteed the level of protection given in the EU/EEA is
don't ask about a minor infraction. CDON must therefore be charged a penalty fee for
the established violation. See also further below under 3.3 for a detailed
description of the seriousness of the violation.
3.2.1 At what amount should the penalty fee be determined?
When determining the maximum amount of a penalty charge to be imposed on a company
shall the definition of the concept of company be used as used by the EU Court of Justice
application of Articles 101 and 102 of the TFEU (see recital 150 i
data protection regulation). It appears from the court's practice that this includes every entity
that carries out economic activities, regardless of the legal form of the entity and the way of doing so
financing as well as even if the unit in the legal sense consists of several physical or
legal entities. 33
According to Article 83.5 c of the data protection regulation, in the event of a violation of, among other things,
article 44 in accordance with 83.2 administrative penalty fees of up to 20 are imposed
million EUR or, in the case of a company, of up to 4% of the total global
the annual turnover during the previous budget year, depending on which value is the highest.
IMY assesses that the company's turnover to be used as a basis for calculation of
the administrative sanction fee is CDON's annual report for the year 2022. The company
32EDPB's guidelines 8/2020 Guidelines 04/2022 on the calculation of administrative fines under the GDPR (adopted for
public consultation on 12 May 2022).
33 See Judgment in Akzo Nobel, C-516/15, EU:C:2017:314, point. 48
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Date: 2023-06-30
had a turnover of approximately SEK 461,000,000 during that budget year. This amount is less than 20
million EUR and of this the penalty fee can be determined in an amount of up to 20
EUR million.
When determining the size of the penalty fee, IMY shall take into account the violation
seriousness and taking into account both aggravating and mitigating circumstances
determine an administrative sanction amount that is effective in the individual case,
proportionate and dissuasive.
IMY assesses that the following factors are important for the assessment of the infringement
seriousness.
As regards the assessment of the seriousness of the infringement, there is initially
factors which mean that there are reasons to view the violation more seriously. CDON has
transferred a large amount of personal data to third countries. The transfer has meant that
the personal data has not been able to guarantee the level of protection given in the EU/EES which
itself is a serious violation. In addition, it is difficult that the transfer of
personal data has been going on for a long time, i.e. as of August 14, 2020
and are still ongoing, and that they have occurred systematically. IMY also considers that now
approximately 3 years have passed since the European Court of Justice rejected the
34
the commission's decision on an adequate level of protection in the USA whereby the conditions for
transfers of personal data to the United States changed.
In the meantime, the EDPB has made recommendations on the consequences of the judgment
which was out for public consultation on 10 November 2020 and adopted in final form
on 18 June 2021. In addition, several other supervisory authorities within the EU/ESS have
issued orders to cease use of the Tool until
sufficiently effective safety protection measures have been taken by them
personal data controller. The decisions have included cases where the personal data controller
has also taken measures such as "anonymization of IP addresses" in the form of
truncation.35
Although these recommendations and decisions clearly point to the risks of and
the difficulties in ensuring a sufficient level of protection for data transfers to companies
in the US, CDON has not taken its own additional safeguards. Google action
36
regarding IP address truncation means that it is still possible to distinguish IP
the address, as it can be combined with other data transferred to
third country (to the USA). This enables identification, which means that the data
together constitute personal data.
CDON's website is also a well-visited e-commerce portal that offers goods from
many different suppliers and is available in several countries and in several languages. It's moving
on information about a large number of registered persons in the EU/EEA who can be identified indirectly and
3 Commission Implementing Decision (EU) 2016/1250 of 12 July 2016 according to the European Parliament and the Council
directive 95/46/EC on whether adequate protection is ensured by the privacy shield in the EU and the United
the states.
3Austrian supervisory authority (Datenschultzbehörde) decision of 22 April 2022 regarding complaints Google
Analytics represented by NOYB with local case number 1354838270, French regulatory authority (CNIL) decision
of February 10, 2022 represented by NOYB and the Italian Supervisory Authority (Garante) decision of June 9, 2022
regarding complaint Google Analytics represented by NOYB, local case number 9782890.
36
Truncation of IP address "anonymization of IP address" means that asterisk or zeros replace other digits at the end
octets (the last digits of an IP address, a number between 0 and 255), which itself can only be one of 256 options.
The effect of this action is that it is still possible to distinguish the IP address from the other IP addresses (255
option), as the IP address can be combined with other transmitted data (e.g. device information and
time of the visit) to third countries (to the USA).
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Date: 2023-06-30
whose data can be combined with other data about them. Regarding
the nature of the data already follows from CDON's own purpose for the processing – i.e.
to, among other things, be able to draw conclusions about how the data subjects navigate and find their way around
The website, that the data combined makes it possible to draw relatively
precise conclusions about the privacy of the data subjects and map them, such as
regarding what they buy and what goods they are interested in over time. CDON's analysis
of the Tool shows that there are proposals for a solution other than the Tool, but the company
has chosen not to introduce this solution due to the fact that such a change would be
particularly burdensome for the company. CDON's processing of personal data entails risks
for serious infringement of the freedom and rights of individuals, which gives CDON a special
responsibilities that entail high requirements for transfers to third countries, where IMY in total
assesses that CDON has not demonstrated that the company has carried out a sufficient analysis and mapping
and also has not taken the necessary safety measures to limit the risks of
those registered.
IMY notes at the same time that there are factors that speak in the opposite direction. IMY takes into account
the particular situation that arose after the judgment and the interpretation of the EDPB's
recommendations, where there was a gap after the transfer tool to the United States
according to the Commission's previous decision rejected by the European Court of Justice. IMY also considers
that CDON has taken certain, albeit insufficient, measures to limit them
personal data transmitted by activating "anonymization of IP addresses"
by truncation. This relationship is also taken into account in the assessment of
the seriousness of the violations.
Overall, IMY assesses, against the background of the reported circumstances, that they
the violations in question are of low seriousness. The starting point for the calculation
of the penalty fee should therefore be set low in relation to the current maximum amount.
There are also reasons to ensure a proportional penalty fee in the individual case
already at this stage to further adjust the starting point for the continued calculation
downwards taking into account the turnover that is the basis for the calculation of
the penalty fee.
In addition to assessing the seriousness of the violation, IMY must assess whether it exists
any aggravating or mitigating circumstances that become relevant
the amount of the penalty fee. IMY assesses that there is no further aggravating factor or
mitigating circumstances, in addition to those considered in the assessment of
the degree of seriousness, which affects the size of the penalty fee.
Based on an overall assessment of the said circumstances and against the background that the
the administrative penalty fee must be effective, proportionate and dissuasive
IMY assesses that the penalty fee can stay at 300,000 (three hundred thousand) kroner.
3.3 Other interventions
In light of the established violation, IMY makes the assessment that CDON must
ordered according to article 58.2 d of the data protection regulation to ensure that the company's
processing of personal data within the framework of the company's use of the tool
Google Analytics complies with Article 44 and other provisions of Chapter V.
This shall be done in particular by ceasing to use that version of the tool
37Austrian supervisory authority (Datenschultzbehörde) decision of 22 April 2022 regarding complaint Google
Analytics represented by NOYB with local case number 1354838270, French regulatory authority (CNIL) decision
of February 10, 2022 represented by NOYB and the Italian Supervisory Authority (Garante) decision of June 9, 2022
regarding complaint Google Analytics represented by NOYB, local case number 9782890.
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Date: 2023-06-30
Google Analytics as used on August 14, 2020, if not sufficient
protective measures have been taken. The measures must be completed no later than one month after
this decision gained legal force.
This decision has been taken by the general manager Lena Lindgren Schelin after a presentation
by lawyer Sandra Arvidsson. In the final proceedings, the chief justice also has
David Törngren, unit manager Catharina Fernquist and IT-och
information security specialist Mats Juhlén participated.
Lena Lindgren Schelin, 2023-06-30 (This is an electronic signature)
Appendix
Appendix 1 – Information on payment of penalty fee
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Date: 2023-06-30
4 Appeal reference
4.1 How to Appeal
If you want to appeal the decision, you must write to the Swedish Privacy Agency. Enter in
the letter which decision you are appealing and the change you are requesting. The appeal shall
have been received by the Privacy Protection Authority no later than three weeks from the day you received it
part of the decision. If the appeal has been received in time, send
The Privacy Protection Authority forwards it to the Administrative Court in Stockholm
examination.
You can e-mail the appeal to the Privacy Protection Authority if it does not contain
any privacy-sensitive personal data or information that may be covered by
secrecy. The authority's contact details appear on the first page of the decision.
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