The respondent is the operator of a website for sporting goods. When the complainant visited this website, she did not interact with the cookie banner or give consent. After accessing the website, the complainant was nevertheless shown advertisements of the respondent on other websites.
When visiting the website, cookies for the services Criteo, Google Analytics and Google Ads, among others, were set in the complainant’s browser or terminal device. As a result, numerous pieces of information were sent from the browser to the servers of advertising partners, including the individual product pages that the complainant had visited as well as unique user identification numbers that were stored and read on the complainant’s terminal device.
The data protection authority first determined that the user identification numbers in question qualify as personal data pursuant to Art. 4 No. 1 of the GDPR. Combining other elements created a “digital footprint” and made it all the more likely that the complainant could ultimately be identified (at some point in the processing chain). This also corresponds to the legal opinion of the European Data Protection Supervisor. In addition, no evidence could be provided in the accountability process that the advertisers could not link the information to the complainant.
This resulted in personalized advertising being displayed to the complainant. The setting or reading of cookies, which serve to play out personalized advertising or which enable the collection of surfing behavior for these purposes, is not necessary from a technical point of view, which is why prior consent would have been required in any case.
Consequently, the data processing following the setting or reading of cookies – i.e. profiling – could not be based on the absence of consent. Art. 6 par. 1 lit. a GDPR be supported. Just as little came Art. 6 par. 1 lit. f GDPR because a balancing of interests cannot go against the data subject if secondary legal standards or the TKG 2021 have been violated in advance.
The decision is not legally binding.
Source: DSB Austria