But is that the case with Disqus? They are collecting marketing information on citizens of the EU. Who is buying that information? I would assume that Disqus does business with EU companies that want that information. Either that, or they do business with other international companies that do business with EU companies.
At some point, Disqus is probably trapped within a graph that connects them and their legal obligations to the EU.
Ignoring legitimate fines seems like a pretty bad idea. I think most countries have law to the effect that the directors of the company being fined are liable, so if you skip those fines then one of the directors goes on holiday to that country then they could be sent to prison.
[0] https://en.wikipedia.org/wiki/European_Economic_Area
[1] https://en.wikipedia.org/wiki/European_Economic_Area#Rights_...
Any EU citizen in our out of country has their PII protected by EU law, regardless of who processes that data.
A pop-up or ToU would not skirt the visitors rights, regardless of what the message said and regardless of the action the user took as a result of the message
My guess is that in a lot of cases though it is that they simply do not want to deal with Article 27. Article 27 is a hassle even if all your data processing itself is fully compliant with GDPR.
Article 27 requires entities not in the Union to designate a representative in the Union that people and governments can use as a contact when they have GDPR concerns.
(Don't confuse this with Article 37, which requires the appointment of a "data protection officer". Article 37 only applies in most cases if you are doing large scale processing).
The representative seems to be more than just a communications go-between to provide an easy way for people in the EU to contact the processor/controller. One of the Recitals says "The representative should be explicitly designated by a written mandate of the controller or of the processor to act on its behalf with regard to its obligations under this Regulation" and "The designated representative should be subject to enforcement proceedings in the event of non-compliance by the controller or processor".
There are EU companies that provide as a service being your Article 27 representative, but because it seems to be more than just a simple communications go-between they charge typically at least a couple hundred Euros or so a year for the service (sometimes much more).
1. They are actually all owned by a multi-national entity that is scared of the GDPR because it also operates in Europe
2. The news sites and their owner(s) aren't bothered; but the ad networks are. Maybe it's a "cross-contamination" issue. So they say something like "to keep using us, block European visitors, we'll provide that capability", and the news sites are probably fine with it because European visitors are a tiny fraction
3. It's a political statement, not an actual GDPR issue
I noticed this being employed by some media sites when I was vacationing in Europe. No Discus comments, no account creation or login, just articles and banner ads. The sites loaded so much faster. I’ve done similar things at work when building out privacy law compliance. It’s a good pattern if you don’t need one to one feature equivalency between your US and EEA/GB presence.
It doesn't have to be bulletproof, it just has to support the claim.
1. the offering of goods or services, irrespective of whether a payment of the data subject is required, to such data subjects in the Union; or
2. the monitoring of their behaviour as far as their behaviour takes place within the Union.
(See Article 3).
I believe that in most cases the point of geoblocking is not so much to try to actually stop people in the EU from accessing the sites, but rather to try to ensure that any data processed falls under #1.
One of the Recitals for that section says:
> In order to determine whether such a controller or processor is offering goods or services to data subjects who are in the Union, it should be ascertained whether it is apparent that the controller or processor envisages offering services to data subjects in one or more Member States in the Union. Whereas the mere accessibility of the controller’s, processor’s or an intermediary’s website in the Union, of an email address or of other contact details, or the use of a language generally used in the third country where the controller is established, is insufficient to ascertain such intention, factors such as the use of a language or a currency generally used in one or more Member States with the possibility of ordering goods and services in that other language, or the mentioning of customers or users who are in the Union, may make it apparent that the controller envisages offering goods or services to data subjects in the Union.
That's a common misconception. GDPR applies to "data subjects who are in the Union". Whether or not the data subjects are EU citizens is irrelevant.
It also applies to all data processing of processors or controllers who are in the Union, regardless of where the processing takes place or whose data is being processed.
For processors or controllers not in the Union processing data of a subject in the Union it applies if (1) the processing is related to the offering of goods or services in the Union, or (2) the monitoring of behavior that takes place within the Union.
Some examples:
If I, a US citizen who has never set foot outside the US, has some interaction with a German company then GDPR applies. The German company is in the Union so it applies to all their data subjects regardless of citizenship or location.
If a French citizen comes to the US and some local US business gathers all kinds of personal information about them GDPR does not apply. The data subject is not in the Union and the processing is not being done by an entity in the Union, so no GDPR.
Not sure how likely a fine would be in that case, though.
No, that's wrong.
First of all, the GDPR does not take in to consideration citizenship, at all. The Regulation targets location rather than nationality. In other words, if either the data subject or data controller are in the EU/EEA then the GDPR applies, even if the other party is not in the EU/EEA (The UK GDPR is the same, but replace "EU/EEA" with "UK").
Secondly, the GDPR regulates the use of Personal Data, not PII. PII is a US legal term and has multiple definitions. Personal data is a broader concept than PII.
If GDPR applies, it applies not only to citizens, but also to residents at the time of the transaction.
The relevant part of GDPR is Article 3, and Recital 23 (full law text in the links below--read them, they're short!).
GDPR applies to a non-EU website that "envisages offering services to data subjects" in the EU. Recital 23 explicitly says that a website merely being available does not count. Offering localized content (e.g. languages, currency for ecommerce) counts. And if your website treats users in the EU differently (such as by having a pop-up that mentions GDPR), that shows evidence that you believe users from Europe are in the target audience of your site.
Actually enforcing fines are a different matter, and will require some locus of business in the EU.
This is an interesting passage.
It seems to me that saying to ALL visitors of the website that the goods and services are not offered to GDPR places should be sufficient to preclude GDPR jurisdiction.
It's not that uncommon. As a concrete example, I know that US expats in Germany are having problems with some banks because FATCA[1], a US law, imposes more controls over every bank in the world dealing with US citizens. At least one German bank [2] has stopped taking US citizens as customers, and I have informally heard of more.
[1] https://en.wikipedia.org/wiki/Foreign_Account_Tax_Compliance...
[2] https://americanexpatfinance.com/news/item/612-german-bank-t...
If you are transparent about what tracking you do and don't do stuff that people don't want, all that's left is including some boilerplate text like "you have rights X, Y and Z and you can contact us at our@email" and you're GDPR compliant.
To me at least, 95% of GDPR compliance is just acting ethically.
Doing that requires understanding a law with out much case precedent, that is extremely broad and has a whole spectrum of enforcement options.
I completely see why a small org might decide to just geo block. That’s an easy to implement, easy to document & defend attempt at compliance.
2. It was my understanding that GDPR compliance is extremely expensive, is this not the case? Perhaps it is very simple.
The small business (perhaps with a mailing list and a database of previous customers and invoices) should have been compliant with the earlier laws (Data Protection etc), and the changes required for them are often minor.
GDPR is not about web or technology. It applies for information on paper too, so there is no clever workaround with hosting your website somewhere else or other tricks.
In short if you don't want to respect GDPR then do what some websites do and reject users from EU.
> This Regulation applies to the processing of personal data of data subjects who are in the Union by a controller or processor not established in the Union […]
https://gdpr-text.com/read/article-3/
And no, there is no exception for a disclaimer. The only thing you can do to workaround it is to simply not collect the data, which is what some sites have attempted do with geo-blocks on their sites.
There are several factors that play in. For example that the data controller offers the delivery of goods in EU Member States, say a plugin like Disqus. It could also be that they have a .eu top level domain.
The Norwegian DPA also writes this in their advanced notice: "Online tracking using cookies and behavioural advertising are explicitly mentioned as activities which constitute monitoring of behaviour in the EDPB Guidelines on the territorial scope of the GDPR."
EDPB: Guidelines 3/2018 on the territorial scope of the GDPR (Article 3) https://edpb.europa.eu/sites/default/files/files/file1/edpb_...
Have a read if you don't believe: https://decoded.legal/blog/2021/04/the-eus-terrorist-content...
I think it's a load of bunk shit.
Companies should be following the law of their country, not of other countries.
I don't want businesses to be forced to bow to the will of Europe, or Iran, or China, or any country other than their own.
It sets up a weird quazi-legal precident where companies could be in the position of trying to play ball with multiple legal systems.
See russia, they want russians data to be on russian servers, even if your company is not there.
Why? Probably so they can seize the digital assets of citizens they want to send to the gulag.
I don't like it one bit, I don't like google working with china, I don't GDPR effecting American companies.
You need to be careful and follow the law of your country.
It pertains to tax as well, which I never understood how a different country wants to impose a tax on a company that doesn't operate there. They might have customers there - but they don't operate there in any meaningful sense more than they 'operate' there if I go onto a US website into it while on vacation in a foreign country.
thanks - I hate it.
If we have a company incorporated solely in the USA that has web content that violates the GDPR but shows a popup and states in its ToU that the website is not to be used by any person or entity in countries that follow the GDPR, can our company be fined under the GDPR?
In other words, do GDPR countries claim jurisdiction over non-GDPR countries' websites?