Privacy NGO noyb filed two complaints against Portuguese websites, complaining that the use of Google Analytics is not GDPR compliant.
The complaints have not been decided yet. However, four European data protection authorities already ruled against the use of Google Analytics in similar complaints by noyb and another (the Danish Datatilsynet) practically banned Google Analytics from Denmark in a press release. These authorities follow a coordinated approach, so other EEA and EU countries such as Portugal may follow.
- Should I worry about the GDPR in Portugal?
- What is the Portuguese privacy legislation?
- What is all the GDPR fuss about?
- Final Thoughts
Let’s dive in!
Should I worry about the GDPR in Portugal?
Portugal is a Member State of the European Union, so the GDPR applies to all data processing activities from Portuguese companies.
The GDPR also applies to any service targeting the Portuguese market. Additionally, if your website’s target audience includes Portugal and you use Google Analytics, it also applies to you.
But there’s a catch- it only applies if you process personal data. Privacy-friendly analytics tools such as Simple Analytics allow you to get valuable insights without processing any personal data. This way, you comply with the GDPR because it doesn’t apply to the data you process in the first place.
What is the Portuguese privacy legislation?
The main data protection framework is the GDPR of the European Union. This legislation is enforced by Portuguese courts and by the Portuguese data protection authority, the CNPD. Portugal is also subject to Articles 7 and 8 of the EU Charter of Fundamental Rights, which protect privacy and grant a right to data protection.
Furthermore, Portugal is a Member State of the Council of Europe. As such, Portugal ratified the European Convention on Human rights, which protects private life and correspondence. Portugal also ratified Convention 108 of the Council of Europe, which is the only binding international agreement on data protection.
What is all the GDPR fuss about?
The recent trend of decisions against Google Analytics is part of a larger legal puzzle about data transfers between the EEA and the US. So this is much bigger than individual countries such as Portugal, and it’s bigger than Google Analytics too. We wrote about this extensively already on our blog, so here’s a short version.
The core issue is State surveillance. Under the GDPR, European personal data can only be transferred outside the EEA when done safely. This is difficult for US data transfers because the US legal framework allows extensive and invasive surveillance over the data of foreign citizens, including Portuguese citizens.
Two data transfer frameworks (Safe Harbor and Privacy Shield) between the EU and the US made GDPR-compliant data transfers possible in the past, but both frameworks were invalidated by the EU Court of Justice in the Schrems I and II cases. A third framework is on the way but will certainly face a legal challenge. With a Schrems III ruling already on the horizon, the future of EU-US data flows remains uncertain.
In the meantime, Portuguese companies and European companies, in general, must resort to different legal tools (typically standard contractual clauses) to lawfully transfer data to the US under the GDPR. However, the issue with these tools is that they offer no protection against State surveillance. For this reason, the Court of Justice clarified in the Schrems II case that they must be supplemented by additional privacy-safeguarding measures whenever data is sent to “unsafe” countries. This is difficult and entirely impossible for the transfers required by certain cloud-based services such as Google Analytics (we wrote about this here).
After the Schrems II ruling in 2020, most companies kept doing business as usual with US-based service providers. In the meantime, NGO noyb filed 101 complaints about data transfers against European websites using Google Analytics and Facebook Connect to nudge authorities toward stricter enforcement of the Schrems II ruling.
Data protection authorities coordinated their approach at a European level to handle the complaints coherently. As a result, the Austrian, French, Italian, and Hungarian DPAs ruled against the use of Google Analytics in very similar decisions, and the Danish DPA essentially did the same in a press release. While the decisions address an individual controller, they all set a precedent that practically amounts to a State-wide ban, as we explained here. Should the CNPD do the same, its decision would set a similar precedent for Portugal.
With coordination at a European level and the influential French and Italian authorities leading the way, other DPAs will likely follow the example and adopt a harder stance on Google Analytics.
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