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Comment by sqrt2 | Hacker News Reader

The website tried to rely on legitimate interest as the legal basis for processing the data, and that precisely requires a balancing test between the interests of the website host and the interests of the data subject.

If you want to make sure that you're not getting the balancing test wrong, you can always go for the legal basis of last resort: consent. Just ask the user whether you can load content from Instagram and only do it if they agree. In fact, since in parallel to the question of your legal basis under GDPR, you also have to comply with the cookie provision from the e-Privacy Directive, where there is no "legitimate interest" exception to the requirement to ask for consent, you will have to ask for consent anyway (as Instagram embeds place cookies).

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> In fact, since in parallel to the question of your legal basis under GDPR, you also have to comply with the cookie provision from the e-Privacy Directive, where there is no "legitimate interest" exception to the requirement to ask for consent, you will have to ask for consent anyway (as Instagram embeds place cookies).

I don't think that's true. The cookie provision is misunderstood when you think you have to ask for consent for functional cookies. Follows from the GDPR, and there is no specific cookie law actually implemented in european countries. See also https://gdpr.eu/cookies/. Ah, but maybe I misunderstood and you are only talking about the cookie set by the embed?

It is not true that "functional" cookies are generally exempt from the consent requirement. What is concretely exempt are necessary cookies for a service that the user explicitly requested. This is not the case for cookies placed by Instagram embeds.

These are the guidelines on consent exemption by the Article 29 Working Party (the European Data Protection Board's predecessor) that explain it: https://ec.europa.eu/justice/article-29/documentation/opinio...

Sorry, but an opinion from 2012 has no chance to be relevant if it disagrees with the current GDPR interpretation I linked to. Note how it explains that the ePrivacy Regulation is not in effect. I do not see how there could be any basis to legislate cookie usage if it is not linked to private data/analytics, if this happens it will not survive the courts I think. I do understand that this cookie consent interpretation is common - one just has to look at those stupid cookie consent forms on private blogs - but it does not follow from real legislation.

However:

> This is not the case for cookies placed by Instagram embeds.

Yeah, I can see how this is complicated and how it fits the topic. It's not a third party cookie for the embed, but for the website it might be, and is it even a functional cookie? I doubt it. I'm not sure how those would be judged and what is a reasonable way to work with embeds. It's only certain that there is not a solution as easy as it was in this case, where self-hosting the fonts was possible.

You're making the mistake of thinking that the cookie consent requirements are somehow a consequence of GDPR. The cookie consent requirements exist separately from and additionally to GDPR as a consequence of the e-Privacy Directive. What GDPR changed in regard to cookie consent is what exactly constitutes "consent", as it updated the Data Protection Directive in that regard, but it did not change when consent for cookies is required.

Other than court judgments, the Article 29 Working Party opinion is the most authoritative opinion you will get on the interpretation of the e-Privacy Directive, which is the "real legislation" that you need to look at.

edit: Nobody claims that the e-Privacy Regulation is in effect, by the way -- of course it isn't, it hasn't even been passed. The cookie consent clause of the e-Privacy Directive is however in effect, and has been since 2009.

Also the e-Privacy Directive does exempt strictly necessary cookies from any consent requirements, or am I completely confused now?

Edit: No, I'm not. The GDPR page I linked states the situation that follows both from the GDPR and the e-Privacy Directive. It also fits to what is written in the directive itself.

Strictly necessary cookies for a service the user explicitly requested. And, importantly, this is true even if no personal data is involved and the process is therefore not covered by GDPR at all -- the cookie clause of e-Privacy Directive applies regardless.

Careful. That is an 100% unofficial site. It is not chartered or funded by the EU. The linked article is from “Richie Koch”an editor working on human rights stories who wrote the article on behalf of Proton VPN, which runs the GDPR.eu site as a content marketing scheme. The linked article is not the law and not official guidance, though it provides a reasonably good summary.

Everything sqrt2 says in the comments is entirely correct, as far as I can tell.

Fair point. And thanks. I think now that my position - while how it should be, consistent with the GDPR and repeated at multiple places - is possibly not in line with a court decision from 2019 or so, that interpreted the e-Privacy Directive in a wrong way imho, and at the very least might depends on local practice of how EU "law" is applied. So you two are probably right.

Ridiculous to govern non-privacy relevant tech usage like this. I still think that's illegal where I live. Regardless, let's hope the e-Privacy Regulation or future court decisions solve this.

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