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EU Court of Justice says controllers of personal data must take reasonable steps to inform third parties when consumer consent is withdrawn
On October 27, the European Court of Justice (ECJ) held that controllers of personal data must take reasonable steps to inform other controllers when a data subject withdraws consent. The decision stems from a request made by a subscriber to a Belgian telecommunications provider to not have his information included in the public telephone directories and directory inquiry services published by the company and other third parties. The controller pulled the subscriber’s information from the public record, but re-added the information to the directories after it received an update to the subscriber’s data that was not noted as being confidential. The subscriber submitted multiple requests for his data to be removed and submitted a complaint with the Belgian Data Protection Authority. The Data Protection Authority ordered the company to take remedial action and fined it €20,000 for infringing several provisions of the General Data Protection Regulation (GDPR). The controller appealed, “arguing that the consent of the subscriber is not required for the purposes of the publication of his or her personal data in the telephone directories, rather the subscribers must themselves request not to be included in those directories under an ‘opt-out’ system. In the absence of such a request, the subscriber concerned may in fact be included in those directories.” The Data Protection Authority contended, however, that the privacy and electronic communications directive “requires the ‘consent of subscribers’ within the meaning of the GDPR in order for the providers of directories to be able to process and pass on their personal data.”
The Brussels Court of Appeal referred questions to the ECJ for a preliminary ruling after determining that there are no specific rules “concerning the withdrawal by a subscriber of his or her statement of wishes or of that ‘consent.’” The ECJ determined that controllers of personal data must get consumers’ informed consent before publishing their information in a public directory. Further, the ECJ determined that such consent can be extended to any subsequent processing of data by third parties, provided the data is processed for the same purpose to which the consumer consented. However, consumers can withdraw consent at any time, and controllers are required to make reasonable efforts to notify third parties, including search engine providers, that are making use of that subscriber’s information of the withdrawal. Notably, the ECJ concluded that if various controllers rely on the single consent of a data subject, “it is sufficient, in order for that person to withdraw such consent, that he or she contacts any one of the controllers.”