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Europe Data Protection Digest | Notes from the IAPP Europe Managing Director, July 1, 2016 Related reading: The Privacy Advisor's top 10 news stories of 2018

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Greetings from Brussels!

Against the backdrop of the Brexit turmoil, there was significant privacy news here in Belgium this week. Facebook has won an important legal victory in Belgium that allows it to continue to track the web activity of non-users of its social network. At the center of the case was Facebook’s use of what is known as a “datr” cookie. The social network uses this tool to track the online browsing activity of both users and non-users, collecting information every time a person clicks on a Facebook “Like” button found on numerous websites.

The Brussels Appeals Court this week dismissed the case filed against Facebook by the Belgian Privacy Commission, stating that the country’s DPA has no jurisdiction over the tech giant, as it has its European headquarters in Ireland. 

That said, the Belgian DPA isn’t backing down just yet and is considering plans to launch a final appeal with the Belgian Court of Cassation — known as the court of last resort — which can throw out prior judgments but may not deliver new ones. “Today’s decision simply and purely means that the Belgian citizen cannot obtain the protection of his private life through the courts and tribunals when it concerns foreign actors,” Willem Debeuckelaere, president of the Belgian Privacy Commission, said in a statement.

This marks a victory for the U.S. company, which staunchly maintained that only the Irish Data Protection Commissioner has jurisdiction over it data practices. "We are pleased with the court's decision and look forward to bringing all our services back online for people in Belgium," a Facebook spokeswoman said.

Almost in parallel last week, Helen Dixon, the Irish DPA, published her annual report for 2015. In mention to Facebook, the report said the company had announced additional functionality in September 2015, following “intense engagement” with the commissioner’s office over a number of months. This new functionality allows users to opt out of online behavioral advertising through the Facebook service itself.

In response to questions, Dixon said that engagement with Irish-based multinationals such as Facebook remains a “constant task for vigilance," as well as new products and services as they roll out. Engagement is key to Dixon's approach. She said furthermore: “We are very committed to this approach of engaging with the multinationals, not simply waiting for them to arrive at a point of contravention where we have to chase after them retrospectively. We do firmly believe the way in which we work with them produces much better safeguards for data subjects.”

There is a lot to be said for ‘entente’ and structured engagement in these trying times; not just from an economic, but also from a political standpoint. Digital services as a whole are not static and constantly evolving at a speed where you almost feel you are constantly catching your breath. Preemptive engagement and continuous dialogue may well be the only approach viable to achieve optimal value for all.

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