This is blog post #17 in our series on the GDPR.
Summary of the case
In our blog post on 23 October 2022, we referred to the Data Protection Authorities (DPAs) of Austria, Denmark, France, and Italy who were concluding that the use of Google’s Universal Analytics (UA or GA3) is not compliant with the EU’s General Data Processing Regulation (GDPR).
The reason for this is that the use of GA3 implies that personal data is transferred to the US, which at that point in time was not on the EU’s list of countries that have adequate level of protection of personal data. This means that the US was not fulfilling the requirements set by the EU/GDPR regarding ‘the protection of fundamental rights and freedoms of natural persons’, which is a key expression in the GDPR.
Furthermore, the Norwegian DPA (Datatilsynet) had up until 23 October 2022 received one (1) complaint regarding Google Analytics. Before any final decision is made, they have to confer with other supervisory authorities in the EEA that also have received similar complaints, according to GDPR Article 60 (One-Stop-Shop mechanism).
(We regret that links in italics in this article point to web pages in Norwegian.)
Universal Analytics (GA3) replaced by GA4
In October 2020, Google released Google Analytics 4, the new version of Google Analytics. In March 2022, Google announced that the Google Universal Analytics tool will be sunset in July 2023 and that Google would only provide the GA4 tool after 1 July 2023.
The Danish DPA have analyzed the GA4 regarding privacy, and concludes on their website that even if improvements have been made, it is still the case that “law enforcement authorities in the third country can obtain access to additional information that allows the data from Google Analytics to be assigned to a natural person.” That said, GA4 is illegal in terms of the GDPR because servers in the US are involved in the process, as long as an adequacy decision EU/US is not made.
The Norwegian DPA decision
Norwegian DPA reports on their website 27 July 2023 that they have concluded on the complaint mentioned above. The complaint stems from the noyb who lodged it against 101 European websites to the data supervisory authorities in the EEA for the use of GA. One of these was the Norwegian telecom-company Telenor, who at that time was using GA.
The conclusion is that personal data then was transferred to the US in violation of the GDPR, Article 44. In other words, the use of Google Analytics was illegal. Because Telenor discontinued use of GA on January 15, 2021, the Norwegian DPA in a letter on 26 July 2023 finds that a reprimand “to be an adequate and proportionate corrective measure”.
The Norwegian DPA relies on the Danish authority by claiming that the conclusion will be the same regardless of whether Google Analytics 3 or 4 has been used (see above).
What about adequacy EU/US?
On 10 July 2023 the European Commission adopted its adequacy decision for the EU-US Data Privacy Framework and announced a new data transfer pact with the United States.
Accordingly, companies from the EEA area should be able to legally use GA as long as Google enter into a so-called Standard Contractual Clauses that provide data subjects with a number of safeguards and rights in relation to the transfer of personal data to Google LLC (Limited Liability Company) in the US.
However there is a big “but”: Max Schrems at noyb writes: “We have various options for a challenge already in the drawer, …. We currently expect this to be back at the Court of Justice by the beginning of next year. The Court of Justice could then even suspend the new deal while it is reviewing the substance of it.”
To use the same phrase as in the recent update of our blog post On the EU-US data transfer problem: The last words are obviously not said.