‘2019 is the year of enforcement’: GDPR fines have begun

The sheer size of the fines, while far less than the maximum allowed under GDPR, indicate that the ICO doesn’t intend to shy away from imposing major fines when a large volume of customer data has been leaked. Every single company that uses third parties to process customer data on their behalf is vulnerable to the same kind of security breach. Granted, the fines have been deemed proportionate to a cyber crime-level data breach, where the stakes tend to be higher than they may be for a company misusing cookies in order to target banner ads. But some ad executives have said the fines set a worrying precedent for the ad industry regardless. They maintain that the timing of the fines — coming just two weeks after the ICO’s warning shot to the ad tech sector — is no coincidence.

The ICO has stressed that the current use of personal data within programmatically traded ads, in particular via real-time bidding, needs user content. That means the way some ad tech businesses are still deploying it is illegal under GDPR.

“[The ICO] talks about the potential scope and impact of a data breach in RTB where you’re also talking massive scale,” said Gabe Morazan, director of product management at CrownPeak, parent company to privacy vendor Evidon. “If you look at the amount of data collected and passed through RTB networks and programmatic advertising, it is a large amount of consumer data and lends itself to that possibility to being similar in size and scope [of customers affected in BA and Marriott fines]. 2019 is the year of enforcement.”

If any ad tech partner along the digital ad supply chain hasn’t done enough to secure their own tech, hundreds of thousands of customers could be affected, with sensitive data leaked, he added. Perhaps not credit card data, as in BA’s case, but data that fits into GDPR “special category” rule such as health, ethnic background or political leaning. The ICO has flagged it is aware this kind of data is still being used within bid requests, without explicit user consent — unacceptable under GDPR. Ad tech businesses cannot use the legitimate-interest clause to justify the use of this kind of personal data, according to the ICO’s latest warning.

Some ad tech executives believe the BA and Marriott fines set a precedent for how the ICO means to proceed with the ad tech sector. “They [ICO] won’t be shy,” said Mark Bembridge, CEO of contextual ads firm Smartology. “Given the use of data in RTB, the fact the ICO has reacted with such a large fine for BA is worrying for RTB and programmatic players still using personal data with no consent.”

The BA breach was reportedly due to a vulnerability in third-party Javascript code getting exploited by a hacking group called Magecart. JavaScript is the fundamental code underlying the way ads are bought and sold programmatically on the open exchange. Typically, publishers’ ad servers return a Javascript tag to their supply-side platforms which includes information like the publisher’s ID, site ID and ad slot dimensions. The SSP then reads that information and calls to multiple servers and injects code onto the page. Technically, all JavaScript code is vulnerable to exploitation.

Fraudulent techniques which exploit Javascript codes have long been rife in digital advertising. Often referred to as fraudulent redirects, piggybacking, or Javascript injection — all names for the same form of Javascript manipulation which fraudsters deploy to siphon off money. In BA’s case, one of its servers had malicious Javascript from a vendor that wasn’t to be trusted. “Any business that runs ads needs to be proactive to this,” said Morazan. “Get visibility into the scripts loading on your sites, where they’re loading from and by whom. Get into the technical aspects so you can be confident the Javascript being injected on your site is from a reputable source and get the right documentation in place [to prove it.]”

Part of the fallout from the BA and Marriott fines may lead to data controllers scrambling to renegotiate liability in contracts with their data processors, according to legal experts. Prior to GDPR’s enforcement, the maximum fine for any data protection violation was £500,000 ($624,000) — as Facebook experienced when it was fined that amount last July. That means that most contracts would have remained with that amount as a liability cap, even post GDPR enforcement. So a processor would only have been on the hook for a maximum of £500,000 should they inadvertently cause a data protection breach: A more manageable sum than the €20 million ($22 million) or 4% of annual global revenue allowed under GDPR. But this week’s fines change that completely, according to legal sources. “The [liability] negotiation table suddenly looks very different,” said Sarah Williamson, partner at Ashfords Solicitors and specialist in ad tech law.

“Because we hadn’t seen fines from the ICO like this before, the cap on liability was proportionate and based on risk born by both parties,” she added. “This announcement will now make people very nervous and could make negotiating liability clauses far trickier.”

The result: In order to protect themselves, data controllers may demand far higher liability caps that cover them in the case of a maximum GDPR fine. That puts data processors in the hot seat, and smaller ones, in particular, may face going under if they accept uncapped liability demands. Either that or they must consider walking away from partnerships if they’re unsuccessful in pushing back. Trusted relationships between data controllers and processors will be more important than ever.