Belgian DPA Decision of 2nd February: Are Other DPAs Right to Warn About Continued Use of the TCF?

Following the publication of the Decision of the Belgian Data Protection Authority of 2 February 2022 on the Transparency & Consent Framework (TCF), many sources have published partial or incorrect information about the scope of that Decision. This information includes guidance from two European data protection authorities (DPAs) advising publishers and others to switch from using the TCF, despite the fact that (i) the Decision is an administrative one that is subject to appeal (see IAB Europe’s announcement in this respect) and (ii) the Belgian DPA gave a period of two months to come up with a plan with corrective measures to remedy alleged non-compliance and an additional six months to implement such measures.

The DPAs making statements in this respect are aware of this, as they have been involved in the decision-making process led by the Belgian DPA and endorsed the remediation period.

IAB Europe wishes to reiterate that the TCF is a voluntary minimum standard created to help publishers establish and document the GDPR legal basis for the processing of users’ personal data by third parties who deliver and measure digital advertising on their sites. The Belgian DPA has not prohibited the TCF, but has instead ordered IAB Europe to introduce additional functionality and propose corrective measures, confirming that the alleged infringements can in its view be remedied.  The version of the Framework that emerges from this process will be an even stronger standard.

If publishers, vendors and CMPs wish to adapt their use of the TCF in the meantime, they remain free to do so, and they can in this context take into account the Belgian DPA’s suggestions of additional information disclosures as well as its guidance regarding the use of legitimate interests as a legal ground for profiling.

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