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Re: ACTION-174: Write up implication of origin/* exceptions in EU context

From: Kimon Zorbas <vp@iabeurope.eu>
Date: Wed, 6 Jun 2012 15:07:10 +0000
To: Ninja Marnau <nmarnau@datenschutzzentrum.de>, "<public-tracking@w3.org> (public-tracking@w3.org)" <public-tracking@w3.org>
Message-ID: <C3DE2A03-89A2-4D71-AE43-A64CC696D94A@iabeurope.eu>
Hi Ninja,

The E-Privacy Directive is not directly applicable and it depends how the EU Member States have transposed this point. I also cannot see that there is a difference between first and third parties in the Directive (or in the national transpositions we have seen).
Do you believe that DNT should be a compliance instrument for the E-Privacy Directive? And how does DNT work together with the privacy seal ULD grants?

Kind regards,
Kimon

Kimon Zorbas
Vice President IAB Europe

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----- Reply message -----
From: "Ninja Marnau" <nmarnau@datenschutzzentrum.de>
To: "<public-tracking@w3.org> (public-tracking@w3.org)" <public-tracking@w3.org>
Subject: ACTION-174: Write up implication of origin/* exceptions in EU context
Date: Wed, Jun 6, 2012 3:20 pm



There has been a long discussion on the explicit/explicit exception
pairs. It kind of bogged down some weeks ago.

I want to further motivate that we keep at least the option of a non-"*"
exception in the spec. I will list the reasons that I already mentioned
in DC but did not write down. Some of these arguments were already made
in the related discussions referred below.

1) Liability:
A site-wide exception requested by the provider can be translated to (I
am quoting Ian here): "I ask you to trust me to pick reputable third
parties."
The issue here is that this blanket exception request creates under
several legislations an (additional) unintentional liability of the
first party for its third parties. Although under the EU Directive 95/46
the first party (data controller) already is responsible for its data
processors' behaviour, it is generally not responsible for third parties
who are data controllers themselves. Outside the EU there may be no
liability for third parties without site-wide exceptions in the
beginning. But this changes when the first party steps up and asks the
user to trust its choice of third parties without giving further
information on who will be responsible. If a (to the user unknown) third
party misuses the data, the user may sue the first party (if she can
track the misuse back to a specific first party), which then may have to
prove to chose and control its third parties with special diligence
("reputable" for sure is not sufficient in Germany at least).

2)Informed consent:
Consent may be site wide, but to be considered "informed", the user must
be able to gain knowledge about the third parties that are considered
data controllers (collect and process data on their own behalf). These
data controllers are legally responsible in the EU. Therefore, the user
needs to be able to determine who they are (even outside the EU this is
of importance for reasons of litigation, objection, etc.)
If we want the exceptions to at least partly work as an opt-in according
to the ePrivacy Directive (only for third parties) transparency is
necessary, granularity in choice would be the most convinient way to
implement this in the DNT recommendation imho.


I went through all of these related threads. I apologise if I missed
some arguments.

Action 172: Write up more detailed list of use cases for origin/origin
exceptions
http://www.w3.org/2011/tracking-protection/track/actions/172

The discussion thread on "explicit-explicit exception pairs"
http://lists.w3.org/Archives/Public/public-tracking/2012Apr/0196.html

ISSUE-129: User-granted Exceptions a) Site-wide Exceptions (mysite,
any-third party)
http://www.w3.org/2011/tracking-protection/track/issues/129

ISSUE-147: Transporting Consent via the Exception / DNT mechanisms
http://www.w3.org/2011/tracking-protection/track/issues/147

Ninja

--

Ninja Marnau
mail: NMarnau@datenschutzzentrum.de - http://www.datenschutzzentrum.de
Telefon: +49 431/988-1285, Fax +49 431/988-1223
Unabhaengiges Landeszentrum fuer Datenschutz Schleswig-Holstein
Independent Centre for Privacy Protection Schleswig-Holstein
Received on Wednesday, 6 June 2012 15:07:55 UTC

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