Latest insights from our experts

Dan Griffin

Posted 17 January 2019
by Dan Griffin

GDPR – are website cookies profiling or automated decision making?

GDPR website cookies

The short answer is probably yes, they are profiling and they are a necessity used in automated decision making. This brings them within the GDPR’s new rules restricting these activities. Article 22(1) says “The data subject shall have the right not to be subject to a decision based solely on automated processing, including profiling, which produces legal effects concerning him or her or similarly affects him or her”.

According to the Information Commissioner’s Office (ICO), Article 22(1) of the GDPR limits the circumstances in which you can make solely automated decisions, including those based on profiling, that have a legal or similarly significant effect on individuals.

However helpful the ICO state that where cookies are used to make automated decisions on marketing that is unlikely to have a ‘legal or similarly significant effect’ are not deemed against the GDPR.

This means activities such as using cookies as a means to decide whether to show users a website in a particular language, tailor product availability of track website usage in order to send targeting marketing message are likely to be permissible.

However there are still some important steps website operators need to take before using cookies. The GDPR requires a privacy policy to expressly mention the use of profiling and automated decision making and users’ rights to restrict it.

The Privacy and Electronic Communications Regulations 2003 (as amended) will also still apply. They require the website operator to display a cookie policy and to ensure email marketing communications are only sent where valid consent from the recipient can be proven.

If you require any advice regarding any matter similar to this, then please do not hesitate to get in touch with our experienced team of Intellectual Property Solicitors in Devon on 01392 207020.

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About the author

Dan Griffin

Dan Griffin

Associate and Solicitor

Associate within commercial litigation