Irish Businesses Facing Penalties as Data Protection Commission’s October 5th Deadline Lands

Businesses all over the country were scrambling last week to make the necessary adjustments to their websites as the Oct 5^th deadline for online cookie compliance fast approached. But by today businesses will be expected to have complied, and it’s unlikely that the many businesses that didn’t devote the necessary resources to this project will have gotten there on time.

However, this should not dissuade them from taking action now, as there are significant penalties for non-compliance under GDPR legislation. This is the advice of the ACOI (Association of Compliance Officers Ireland) who say that implementation of the Data Protection Commission’s (DPC) guidance has significant implications for Irish businesses, particularly those SMEs whose resources may be already fully focused on surviving COVID and preparing for Brexit.

Michael Kavanagh, CEO of the ACOI explained,

“The ending of the grace period for implementing the DPC’s guidance on cookies and tracking technologies (See Appendix) is today October 5^th, and anecdotal evidence has suggested that for many organisations, this has been overlooked, with energy, time and resources being placed instead on responding to COVID and Brexit. But it hasn’t gone away – and even though the business environment has never been more challenging, compliance is expected and will be enforced. With GDPR, the DPC has the power to impose significant sanctions on businesses that don’t comply, for example, if it was proven that a business did not gain affirmative consent from consumers using the site, then then they could potentially be fined a percentage of their turnover”.

In late 2019, the DPC carried out a cookie sweep of thirty-eight organisations, with a view to understanding current levels of compliance in Ireland. The ACOI say this exercise raised significant issues across a range of areas. Some of the issues highlighted included websites setting cookies immediately on the landing page, in many cases for non-necessary cookies. Others misclassified cookies as necessary or strictly necessary, while consent was found to be bundled in many cases. In April 2020, the DPC then issued a guidance note which is intended to ensure greater levels of adherence across Irish organisations, and businesses were given 6 months to bring their sites in line with these new practices.

Mr Kavanagh went on to comment,

“The implications for Irish businesses are considerable and extend beyond meeting the DPC’s list of requirements. For marketing and sales teams, the need to receive consent before deploying analytics cookies will effectively set a new baseline for their website metrics. A significant number of users are unlikely to opt-in, making it difficult to accurately compare year-on-year performance across the site. Customer service departments relying on website chatbots to deal with consumer queries must assess how to cater to customers who choose not to opt-in to this function. Many companies will need to implement a consent management platform (CMP) if one is not already in place. It will not be feasible to manually oversee aspects such as the requirement to reaffirm consent every six-months. Lastly, any firms still relying on pre-ticked forms of consent must amend their practices soonest. Compliance professionals will need to consult widely across the business to ensure key departments and stakeholders are aware of the upcoming changes, and to minimise the potential impact on day-to-day operations”.

The ACOI advise that all businesses should give high priority to this issue for the remainder of the year.

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