Under the General Data Protection Regulation (GDPR), data controllers are required to provide information to data subjects about their processing in a concise, transparent, intelligible and easily accessible form. The enforcement of the GDPR falls within the remit of the relevant data protection authority, eg the Data Protection Commission. In addition to scrutiny of privacy policies by data protection regulators, we are seeing increasing efforts by consumer groups and regulators across the EU to apply consumer protection law to privacy policies. These efforts have been successful in Italy and Germany. To the extent consumer law applies to privacy policies, the effect of failing to comply with these laws could be significant. Fines for breaches of consumer law will become much more substantial in 2022 with the coming into force of the Enforcement and Modernisation Directive. We have outlined these changes here.
Unfair commercial practices
Under the Unfair Commercial Practices Directive, as implemented in Ireland through the Consumer Protection Act 2007, unfair business-to-consumer commercial practices are prohibited. There are two main types of these practices:
Misleading commercial practices, and
Aggressive commercial practices.
Misleading commercial practices constitute either misleading information or misleading omissions.
This means that a trader may be committing an offence under consumer law if they give information which is likely to:
Deceive the average consumer
Cause them to make a transactional decision which they would not otherwise have made, or
Omits or conceals material information which the average consumer would need.
Consumer Rights Directive
Data controllers take the view that their privacy policies are non-contractual. However, differing views are taken in other jurisdictions and ultimately it may depend on the language of the policy itself.
For more information, contact a member of our Technology team.
The content of this article is provided for information purposes only and does not constitute legal or other advice.