Disqus facing $3M fine in Norway for tracking users without consent

Datatilsynet said it acted following a 2019 investigation in Norway’s national press — which found that default settings buried in the Disqus’ plug-in opted sites into sharing user data on millions of users in markets including the U.S.

And while in most of Europe the company was found to have applied an opt-in to gather consent from users to be tracked — likely in order to avoid trouble with the GDPR — it appears to have been unaware that the regulation applies in Norway.

Norway is not a member of the European Union but is in the European Economic Area — which adopted the GDPR in July 2018, slightly after it came into force elsewhere in the EU. (Norway transposed the regulation into national law also in July 2018.)

The Norwegian DPA writes that Disqus’ unlawful data-sharing has “predominantly been an issue in Norway” — and says that seven websites are affected: NRK.no/ytring, P3.no, tv.2.no/broom, khrono.no, adressa.no, rights.no and document.no.

“Disqus has argued that their practices could be based on the legitimate interest balancing test as a lawful basis, despite the company being unaware that the GDPR applied to data subjects in Norway,” the DPA’s director-general, Bjørn Erik Thon, goes on.

“Based on our investigation so far, we believe that Disqus could not rely on legitimate interest as a legal basis for tracking across websites, services or devices, profiling and disclosure of personal data for marketing purposes, and that this type of tracking would require consent.”

“Our preliminary conclusion is that Disqus has processed personal data unlawfully. However, our investigation also discovered serious issues regarding transparency and accountability,” Thon added.

The DPA said the infringements are serious and have affected “several hundred thousands of individuals”, adding that the affected personal data “are highly private and may relate to minors or reveal political opinions”.

“The tracking, profiling and disclosure of data was invasive and nontransparent,” it added.

The DPA has given Disqus until May 31 to comment on the findings ahead of issuing a fine decision.

Publishers reminded of their responsibility

Datatilsynet has also fired a warning shot at local publishers who were using the Disqus platform — pointing out that website owners “are also responsible under the GDPR for which third parties they allow on their websites”.

So, in other words, even if you didn’t know about a default data-sharing setting that’s not an excuse because it’s your legal responsibility to know what any code you put on your website is doing with user data.

The DPA adds that “in the present case” it has focused the investigation on Disqus — providing publishers with an opportunity to get their houses in order ahead of any future checks it might make.

Norway’s DPA also has some admirably plain language to explain the “serious” problem of profiling people without their consent. “Hidden tracking and profiling is very invasive,” says Thon. “Without information that someone is using our personal data, we lose the opportunity to exercise our rights to access, and to object to the use of our personal data for marketing purposes.

“An aggravating circumstance is that disclosure of personal data for programmatic advertising entails a high risk that individuals will lose control over who processes their personal data.”

Zooming out, the issue of adtech industry tracking and GDPR compliance has become a major headache for DPAs across Europe — which have been repeatedly slammed for failing to enforce the law in this area since GDPR came into application in May 2018.

In the UK, for example (which transposed the GDPR before Brexit so still has an equivalent data protection framework for now), the ICO has been investigating GDPR complaints against real-time bidding’s (RTB) use of personal data to run behavioral ads for years — yet hasn’t issued a single fine or order, despite repeatedlywarning the industry that it’s acting unlawfully.

The regulator is now being sued by complainants over its inaction.

Ireland’s DPC, meanwhile — which is the lead DPA for a swathe of adtech giants which site their regional HQ in the country — has a number of open GDPR investigationsinto adtech (including RTB). But has also failed to issue any decisions in this area almost three years after the regulation begun being applied.

Its lack of action on adtech complaints has contributed significantly to rising domestic (and European) pressure on its GDPR enforcement record more generally, including from the European Commission. (And it’s notable that the latter’s most recent legislative proposals in the digital arena include provisions that seek to avoid the risk of similar enforcement bottlenecks.)

The story on adtech and the GDPR looks a little different in Belgium, though, where the DPA appears to be inching toward a major slap-down of current adtech practices.

A preliminary report last year by its investigatory division called into question the legal standard of the consents being gathered via a flagship industry framework, designed by the IAB Europe. This so-called ‘Transparency and Consent’ framework (TCF) was found not to comply with the GDPR’s principles of transparency, fairness and accountability, or the lawfulness of processing.

A final decision is expected on that case this year — but if the DPA upholds the division’s findings it could deal a massive blow to the behavioral ad industry’s ability to track and target Europeans.

Studies suggest Internet users in Europe would overwhelmingly choose not to be tracked if they were actually offered the GDPR standard of a specific, clear, informed and free choice, without any loopholes or manipulative dark patterns.