我告诉他们强迫同意是违法的。5年后,Elkjop为此付出了180万欧元的代价。
I told them forced consent was unlawful. 5 years later it cost Elkjop €1.8M

原始链接: https://www.thatprivacyguy.com/blog/elkjop-forced-consent-fine/

2021年,作者对Elkjop集团(Elgiganten)的“强制同意”模式提出了质疑,该模式要求客户必须接受营销邮件才能成为俱乐部会员。作者认为《通用数据保护条例》(GDPR)要求同意必须是自愿给出的,因此提交了正式投诉。 经过五年的升级处理,挪威数据保护局(Datatilsynet)对该零售商处以了2000万挪威克朗(约180万欧元)的罚款。裁决确认,该公司在数据处理上采取的“要么接受,要么离开”的做法是非法的,导致会员所提供的同意无效,并指出了数据被不当挪用的问题。 尽管这是数字隐私权的一次胜利,但作者批评监管机构未能将最终决定通知他们,这违反了GDPR第77条第2款规定的法律义务。目前,作者正要求当局给予解释,并准备对该公司提起民事诉讼。此案为企业敲响了里程碑式的警钟:将同意与服务准入捆绑是非法的,不尊重消费者权利可能会导致严重的经济损失和声誉受损。

在被告知其“强制同意”做法——即要求忠诚度计划会员必须接受激进营销——属于违法行为五年后,挪威零售商 Elkjøp 被挪威数据保护局(Datatilsynet)处以 180 万欧元的罚款。 该案件由隐私倡导者 Alexander Hanff 披露,焦点在于该公司拒绝让顾客在不接受广泛数据追踪和直接营销的情况下加入其会员俱乐部。监管机构裁定,这种“捆绑式”同意并非出于自愿,违反了《通用数据保护条例》(GDPR)的相关要求。 随后在 Hacker News 上引发的讨论揭示了观点上的严重分歧: * **隐私倡导者**称赞该裁决是捍卫基本权利、抵御企业越权行为的重要举措,并指出此类执法迫使公司停止从不合规的数据处理中牟利。 * **GDPR 的批评者**认为,这些法规为企业带来了不必要的官僚负担,所谓的“强制同意”仅仅是享受折扣时的一种标准交换条件。 * **大众评论**则关注司法程序的缓慢、追究大型企业责任的困难,以及非欧盟地区用户对类似隐私保护日益增长的诉求。 Hanff 指出,这笔罚款可能仅仅是个开始,它为针对其母公司提起进一步的代表性诉讼铺平了道路。
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原文

Back in the summer of 2021 I was a member of the Elgiganten Kundklubb, the customer club the Elkjop group runs across the Nordics, and like a lot of members I was buried under marketing emails. So I did the obvious thing and went looking for a way to switch them off. What I found instead was the problem that has taken five years to put right - the only way to stop the marketing was to cancel my membership of the club altogether.

I wrote to their Data Protection Officer on 30th July and set out, in plain terms, why that arrangement breaks the law. Under Article 21(2) of the GDPR every person has an absolute right to object to direct marketing. Under the ePrivacy Directive, marketing by email is only lawful where I have given my consent, or where there is an existing customer relationship and I am offered a simple way to opt out both at the point my details are collected and in every message after that. And consent, to be worth anything at all, has to be freely given - which under Article 4(11) and Article 7 means it cannot be bundled into, or made a condition of, something else. Forcing me to surrender my membership and the benefits that come with it, just to exercise a right I already hold, is the textbook example of consent that is not freely given.

They put the violation in writing

The reply I received a few days later did me the favour of putting the violation on the record. Their position, in their own words, was that "in order to receive marketing / offers, it is a condition to be a member of the customer club." That one sentence is the whole case. They had taken a right I am entitled to exercise for free and turned it into the price of admission.

So I escalated. I served a formal restriction of processing under Article 18, I sent a full subject access request under Article 15 - the legal basis they were relying on, the legitimate interest balancing test, the recipients, the sub-processors, the international transfers, the profiling, all of it - and I filed a complaint with the Swedish supervisory authority, Integritetsskyddsmyndigheten (IMY), which issued the reference DI-2021-6660. The company's answer to all of this was to point me at a vague privacy policy, and then, when that did not wash, to stretch the deadline on my access request out to ninety days while citing "complexity" and "limited internal resources".

How a Swedish complaint became a Norwegian fine

This is where the machinery of the GDPR comes in. The customer club is run by the Norwegian parent, Elkjop Nordic AS, and on the facts it is the parent that holds the real decision making power over the purposes and the means of the processing. So in September 2022 IMY decided it was not the right authority to deal with this at all. Under the one-stop-shop in Article 56(1), the competent regulator is the one for the controller's main establishment, and that establishment sits in Norway. IMY handed the investigation and my complaint to Datatilsynet, the Norwegian DPA, which accepted the case. And then, as these things tend to, it went quiet for a very long time.

On 1 June 2026 it stopped being quiet. Datatilsynet fined the Elkjop group NOK 20 million, a little over €1.8 million, and it found precisely what I had told them in 2021. The consent the company was relying on for its customer club was not valid - it was forced, it was not specific, and members were not properly informed. On top of that, the company had taken the personal data it gathered through the club and put it to further use for advertising and conversion tracking, without ever carrying out the compatibility assessment that Article 6(4) demands before you repurpose people's data like that. The decision runs through Articles 4(11), 5(1)(a), 5(2), 6(1)(a), 6(1)(f) and 6(4) - the lawfulness, the fairness, the transparency and the accountability of the entire arrangement.

I want to be clear about why this matters well beyond one retailer and one fine. Forced consent, pay-or-consent, bundled consent, the whole "agree to everything or you cannot use the service" model - it is everywhere, and it is the default way an enormous part of the digital economy operates. It is also unlawful, for the same simple reason every single time - if you cannot say no without losing something you are entitled to keep, you have not freely consented to anything. Five years and a seven figure fine later, that point is now sitting in a published decision for anyone to read.

I had to read about it on a wiki

And yet there is a part of this story I am not willing to let slide, because it is its own small scandal.

I did not find out about this decision from IMY. I did not find out from Datatilsynet. I found out from GDPRhub, a volunteer-run wiki, on a random Thursday morning, nearly five years after I filed my complaint and well after the decision had already been made.

Under Article 77(2) of the GDPR a supervisory authority is under a binding legal obligation to keep a complainant informed of the progress and the outcome of their complaint. It is not a courtesy and it is not discretionary - it is written into the law. I filed my complaint with IMY, IMY passed it on, the case ended in a multi-million euro enforcement action, and not one of the authorities involved thought to tell the person who started it.

So this morning I wrote to IMY and asked them, in writing, to explain themselves. I have given them five working days. If the answer is what I suspect it will be, I will be filing under the European Union's infringement procedure, because a supervisory authority that cannot meet its most basic obligation to the people it exists to protect is exactly the sort of thing the Commission is supposed to look at. I have walked the Commission down this road before, over Phorm and the United Kingdom's failure to properly implement the EU rules on the confidentiality of communications, and I am entirely willing to do it again.

I have been saying for years that privacy is personal, and I mean it in the most literal way I can. This was my club membership, my inbox, my data and my complaint. The law was on my side in 2021 and it is on my side now. The company that told me to leave or put up with it has paid for that choice.

The only things still outstanding are an explanation from the Regulator that was meant to have my back the whole way through and civil litigation against Elkjop group now that the regulatory process has run its course - a litigation that is going to be so much more extensive now we have further details of further illegal processing of that personal data.

If they had listened to me in 2021, they would have avoided the fine, they would have made their processing lawful, they would have avoided the brand damage and the resulting litigation.

When I write to you as DPO with a complaint, it would be wise for you to take note. I am not a layperson, I am an expert on this law that I helped to create and I do not stop just because these actions are inconvenient, it is my life's work. Pay attention, when I write to you I am giving you free advice and you should treat as such instead of getting defensive and refusing to change.

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