Privacy NGO noyb filed complaints against four Dutch websites, complaining that Google Analytics is not GDPR compliant.
The complaints haven’t 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 the Netherlands, may follow.
Additionally, the Autoriteit Persoonsgegevens announced in a January 2022 press release (Dutch only) that it was investigating the use of Google Analytics, so we can expect a decision at some point.
- Should I worry about the GDPR in the Netherlands?
- What is the Dutch privacy legislation?
- What is all the GDPR fuss about?
- Final Thoughts
Let’s dive in!
Should I worry about the GDPR in the Netherlands?
The Netherlands is a Member State of the European Union, so the GDPR applies to all data processing activities from Dutch companies.
The GDPR also applies to any service targeting the Dutch market. Additionally, if your website’s target audience includes the Netherlands 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 do need to comply with the GDPR because it doesn’t apply to the data you process in the first place.
What is the Dutch privacy legislation?
Aside from the GDPR, the Netherlands have its own privacy legislation, which includes The Dutch GDPR Implementation Act. Privacy legislation is enforced by the Dutch DPA (Autoriteit Persoonsgegevens).
The Netherlands are also subject to Article 7 and 8 of the Charter of Fundamental Rights of the European Union, which protect privacy and grant a right to the protection of personal data.
The Netherlands is also a Member State of the Council of Europe. As such, the Netherlands ratified the European Convention on Human rights, which protects private life and correspondence. The Netherlands 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 the Netherlands, 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 safely outside the EEA. This is difficult for US data transfers because the US legal framework allows extensive and invasive surveillance over the data of foreign citizens, including Dutch 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, Dutch companies 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 Schrem II ruling clarified that they must be supplemented by additional privacy-safeguarding measures whenever data is sent to “unsafe” countries, including the US. 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. The Autoriteit Persoonsgegevens’ announced decision may set a similar precedent for the Netherlands.
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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