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What you need to know about... Data protection in a Black Mirror world

Unraveling Black Mirror's privacy snafus: When science fiction meets reality, but forgets to do its privacy law homework

Param Gopalasamy
Content Marketing Specialist, CIPM, CIPP/E
June 30, 2023

Bullet hole in cracked glass

SPOILER ALERT! If you haven’t watched season 6, episode 1 of Black Mirror – stop reading now. Watch it (we get it, you’re cool for not watching what everyone’s talking about) and come back to this article. 

 

Jump into the privacy pandemonium of Black Mirror Season 6, where consent, employee rights, and Salma Hayek dance a complicated tango.

Was I hooked? Definitely.

Did Krish spark a culinary revolt among spice-loving Indians? Indeed.

Did it conquer the privacy law maze? Not by a long shot. 

Enter Joan, who discovers a Streamberry series that’s essentially a carbon copy of her life. From her texts to therapy sessions, to even confidential company information - nothing is off limits. What’s the fallout?  A love life in ruins, a job down the drain, and a tarnished reputation.

In the legal world, these are 'actual damages'. Joan's got a laundry list of them and understandably seeks legal counsel.

Cue the collective groan from privacy professionals worldwide as Joan gets the textbook ‘I’m sorry, there’s nothing you can do’ spiel. Supposedly, Streamberry's fine print – which she agreed to – gives them an all-access pass to her life via her phone's mic and camera.

Without further ado, let's delve into the privacy faux pas in this Black Mirror escapade. Let's dissect, analyze, and in true Black Mirror fashion, probably leave you questioning everything you thought you knew about privacy rights. Buckle up.

 

Transparency and privacy notices

The lawyer claims that because Streamberry’s terms and conditions give them the right to all of your data, absolutely nothing can be done to poke holes in this from a legal standpoint. This could not be more false. 

First off: this blatant invasion of privacy would set off alarm bells in any human rights court. Consumer protection laws across the globe explicitly state that you cannot sign away your basic human rights through a contract. If Streamberry mentioned in their T&Cs that you had to participate in a series of deadly challenges where survival guarentees a huge cash prize (Squid Game anybody?), and you knowingly or unknowingly sign it — it is still not binding or legal. And while challenges to the death certainly trump data misuse in the outrageous stakes, both scenarios violate basic human rights, and therefore, are illegal. Period.

The very first thing that the lawyer should have done was submit a complaint to a privacy regulator, consumer protection regulator, or Attorney General in the area. 

In fact, privacy regulations today specifically state that companies need to have clear, conspicuous privacy notices in place that are easily accessible to customers and state what data is being used and how it is being processed. The whole point of these notices is to ensure that organizations are transparent with their customers about their data processing methods. Even if Streamberry were to argue that their T&Cs serve as a privacy notice and were accessible for anyone to read on their website (we’re giving them the benefit of the doubt here) — it still wouldn’t be compliant with any major privacy regulation as the privacy implications need to be mentioned much higher up in their communications.

In other words, burying a clause as important as, “all your data can be used by us and made public via a tv show”, in your T&Cs is not going to cut it, and would not hold up in any court as compliant with privacy regulations. Not only that, but transparency notices also require so much more than one clause. Companies need to clearly explain the following to their customers:

  • Categories of personal information collected/used
  • Purposes for collection/use 
    • Companies need to be very specific here
    • If they claim that data is being used for a certain purpose, it cannot be used for any other purpose unless specified
  • Where this personal information is collected, i.e., the source
  • Categories of information shared with third parties
  • Categories of third parties that data is shared with
  • How customers can access their rights, which include:
    • Right to data deletion
    • Right to restrict processing
    • Right to withdraw consent

Joan was denied access to all of these rights, and her lawyer appeared to be blissfully unaware of them. I’m starting to think the lawyer was on Streamberry’s payroll.

  • How customers can appeal a decision related to a rights request

Even if Joan was able to request her data be deleted and Streamberry  denied it, they’re still required by law to explain why they made this decision. In some cases, a regulator would need to agree with Streamberry’s decision in the case of an appeal. 

  • Contact details of the business and/or data protection officer (DPO)

Considering the absolute privacy mess that is Streamberry, there’s a good chance they don’t employ a DPO (or they have one who’s completely mailing it in).

This is all to say — Joan, for the love of Max Schrems, please get a new lawyer. 

 

User consent

Another blatant privacy fail in the episode is the matter of Joan’s consent. While Streamberry tried to get out of this by stating that the contract with the streaming service was the legal basis to process this data, we’ve gone over how this has no validity under any regulation out there today. While consent would have been their best bet for any hope of legal operation, there was a complete lack of effort on Streamberry’s part to gain valid consent to collect and process her data. 

Nearly all major privacy regulations define consent based on the following aspects:

  • Freely-given – Given by the users on a voluntary basis
  • Specific – Users should know who the controller is, what data is processed, and how it will be used
  • Informed – The user should be informed that they can withdraw consent at any time, and be shown the mechanism to withdraw their consent 
  • Unambiguous – Requires a clear, affirmative act 

However, in the case of the GDPR, consent is only valid in an opt-in mechanism where users must opt-in to the processing of their data. In other major privacy regulations across the world, opt-out mechanisms are also valid, where users must opt-out of the processing of personal data. In either case, however, clear action must be taken. 

So at the end of the day, what does all this mean for Joan? Let’s go down the list. 

Was her consent freely given? 

No. She never gave her consent, let alone freely (opt-in or opt-out), for her data to be processed this way. 

Was her consent specific? 

No again. She was never informed that her data would be used in this way. 

Was her consent informed?

No, again (I’m starting to see a trend here …). She was never aware that her consent could be withdrawn (in fact, she never gave consent). 

Was her consent unambiguous?

No. She never took a clear affirmative action to give her consent for this data to be used as such.

That gives us 4 solid nos across the board regarding how Streamberry handled user consent regarding personal data processing – meaning we have a wonderfully illegal use of data staring us in the face. 

To quote Parks & Rec, “straight to jail”. Or in this case, probably a hefty fine. 

 

Sensitive data

Another wrinkle in the show until now is that Joan’s therapy sessions are used by Streamberry without an extra layer of consent required to process this data. Therapy sessions fall under the bucket of “health-related data” which is considered sensitive data by every major privacy regulation in the world. Not only is it just the health data from her therapy session, but also the data concerning Joan’s sex life with the scenes of her and her ex that also fall under the category of “data regarding one’s sexual orientation”, which is another subcategory of sensitive data. 

Companies are required to obtain an extra layer of consent in order to process this personal data. In fact, under the GDPR, the only legal basis for processing this data is “explicit consent”. This means that this type of consent needs to follow the points below:

  • An explicit consent statement needs to specifically refer to the element of the processing that requires explicit consent
    • Specify the nature of the special category data
    • Details of the automated decision and its effects
    • Details of the data to be transferred and the risks of the transfer
  • The ‘explicit’ element of any consent should also be separate from any other consents you are seeking

Given that Streamberry failed to process the consent of even non-sensitive personal data accurately — in the case of sensitive data, they have failed magnificently. The use of sensitive data would also have to be called out explicitly in a privacy notice. So not only is there no legal basis for Streamberry to process this data, but they’ve also given no option for users to consent or even opt-out of this processing. 

In the case of processing sensitive data such as health data, organizations are required to conduct risk assessments to identify any spots in the data lifecycle where their users’ privacy is compromised and ensure adequate data security provisions. In fact, these data protection impact assessments (DPIAs) are to be conducted from the point of view of individuals or data subjects. Ironically, the primarily rule of thumb in these assessments is “if the individual would be unpleasantly surprised if they understood what is being done with their data, it is a process that needs to be changed.” That statement alone sounds like a synopsis of the episode. 

Even if we give Streamberry more benefit of the doubt (that they don’t deserve) and assume that they have state of the art data protection measures on the security side, including encryption, anonymization, and pseudonymization — there’s still the gaping hole of privacy compliance. The concept of Privacy by Design, which is a staple of nearly all major privacy regulations, states that companies need to include privacy as a key factor of consideration from the inception of any new product or service, not an afterthought. By the look of things, Streamberry executives have tried their best to introduce a new concept, “No Privacy by Design”. 

In the words of DJ Khaled, “another one” (fine for privacy non-compliance that is).  

 

Device permissions

The main crux of how Streamberry uses their viewers’ data is based on their devices keeping microphones, location, and cameras on, and then subsequently sharing this data with the streaming platform to use for their content. 

You’ve probably heard your older relatives complaining about how “the phones are listening” and show them ads based on conversations they have. In the Streamberry-verse, they’re definitely right. While we all set device permissions on our phone for the location, microphone, and camera with different apps, they use them for specific and limited purposes defined by the respective apps. 

In the case of sharing personal data with a streaming app, not only does this require additional consent and proper notices in place, but your device does not have the right to share this data with third parties without your knowledge and permission. This blatant disregard for basic privacy compliance shows off the Streamberry “No Privacy by Design” framework at its finest. Streamberry’s mode of data collection is, yet again, illegal. 

They’ve got a real knack for disregarding user privacy at every turn. I can almost imagine Oprah reading Streamberry’s data policies — “You get a fine, you get a fine, you get a fine!”

 

First-party data

We talk a lot about the importance of collecting first-party data at OneTrust. Please don’t go about it the way Streamberry does though. Personalization is important – and every study has shown that personalized offerings and content increases customer engagement and brand loyalty. But it needs to be done the right way – honoring your user privacy and ensuring you’re transparent throughout. 

Also, who wants to see a tv show about themselves (shout out to all my narcissist readers)? TV shows are generally about escaping your daily life for a short window – not reliving your life (especially the worst parts edited for maximum pain) again and again. More effective personalization would be to collect preferences via surveys, feedback, and viewing data to curate the best possible TV show collection for users – keeping them engaged and on the platform for the most possible time. 

 

(Privacy) food for thought: Image licensing

The whole concept of Salma Hayek licensing her image to be used in the tv show is a primary factor in the plot. This raises many interesting questions around privacy regarding how this ‘digital twin’ is used. There’s a good chance you’ve seen a deepfake video of a celebrity saying something that they’ve never said in real life. Are deepfakes a violation of privacy for the person? Can deepfakes of the general public be used to create echo chambers and perpetuate bias? Does this technology have the ability to perpetuate harmful and/or inaccurate data? Does a public persona’s face count as biometric data and therefore fall under the bucket of sensitive data?

This brings up the line between publicly accessible personal data in the case of many celebrities vs. people's personal data in the public eye. When personal data is already willingly shared with the world via social media or otherwise, it’s generally considered fair game to use it without the same level of protections that people’s personal data is usually given. However, when someone’s personal data that has not been willingly shared with the public gets exposed, that’s when the matter of privacy compliance and breaches come into play. 

With these new technologies surfacing, privacy laws are still evolving to meet our expanding digital reality. While licensing your image under a contractual agreement with T&Cs that define its use is completely legal, the involvement of AI leaves the possibility of an unknown outcome with how this image may be used. In this case, is it even fair to give consent or is the layer of AI added on to image licensing considered a violation of basic privacy rights? 

The privacy implications of deepfakes and image licensing powered by AI are both factors that need to be addressed in the next wave of privacy regulations.

 

Where in the world is Streamberry illegal?

To really drive home how illegal this streaming platform is – here’s a table that shows where in the world Streamberry’s operations would be illegal today. 

NOTE: These are just a few examples of countries where Streamberry’s operations are illegal, the comprehensive list would require another entire post of its own. 

 

Country/RegionRegulationEnforcement AgencyIs it illegal?What part of the law does it break?
CaliforniaCCPACalifornia Privacy Protection Agency (CPPA)YesPrivacy notice and disclosures, consent, sensitive data requirements
UKUK GDPRInformation Commissioner’s Office (ICO)YesPrivacy notice and disclosures, consent, sensitive data requirement
EuropeGDPRData Protection Authorities (DPAs) from 27 member states YesPrivacy notice and disclosures, consent, sensitive data requirements
CanadaBill C-27Office of the Privacy Commissioner (OPC)YesPrivacy notice and disclosures, consent, sensitive data requirements
BrazilLGPDNational Data Protection Authority (ANPD)YesPrivacy notice and disclosures, consent, sensitive data requirements
ChinaPIPLCyberspace Administration of China (CAC)YesPrivacy notice and disclosures, consent, sensitive data requirements

 

Then again – do any of these laws really apply in fictive layer 1? 

 

For the latest in privacy, security, ethics, and ESG, keep up to date with the OneTrust blog.


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September 12, 2022

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Infographic

Cookie Consent

10 tips to master cookie consent

Download our infographic and learn how to create a Consent Management Platform that meets compliance requirements, maximizes opt-ins, and builds trust. 

September 12, 2022

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Infographic

Consent & Preferences

Why consent and preference management?

View our infographic on consent and preference management and learn the value it brings to your organization.

September 08, 2022

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Webinar

Consent & Preferences

Fireside chat: A modern marketer’s approach to privacy & data

Learn the challenges and opportunities marketers face to deliver personalized experiences while remaining compliant with global privacy requirements.

September 08, 2022

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Resource Kit

Consent & Preferences

Your marketer’s masterclass resource kit

OneTrust has created a range of resources to help marketing teams take a privacy-first approach that turns consumer trust into a competitive advantage.

September 06, 2022

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Webinar

Consent & Preferences

Fuel campaigns with consented earned data ahead of cookieless a world webinar

Watch this on-demand webinar to learn why you should center your marketing strategy around consented earned data to fuel business growth.

August 22, 2022

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Webinar

Consent & Preferences

Bringing privacy and consent to your marketing stack

This webinar deeply explores how automated integration takes the guessing out of compliant marketing activation and discovers the value of consent signaling.

August 22, 2022

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Webinar

Consent & Preferences

Embark on your trust journey with Consent and Preferences

Join this interactive webinar to learn how consent and preferences help build trust across all your marketing channels and ensure you respect privacy rights.

August 22, 2022

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Webinar

Consent & Preferences

Preference Management: Power up omni-channel experiences

Join this webinar to learn how to expand beyond obtaining customer consent to preferences that enhance relationships between your audience and your brand.

August 21, 2022

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Infographic

Consent & Preferences

Build trust by honoring privacy

In this short guide, you’ll learn how to build a marketing strategy that delivers on customer expectations while maintaining compliance with global privacy laws.

August 19, 2022

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eBook

Consent & Preferences

Complete guide to first-party data

This guide outlines everything you need to know to build optimal consumer experiences using first-party data, such as how and where to collect first-party data.

August 10, 2022

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Infographic

Consent & Preferences

How to transform healthcare marketing and increase business growth

Download this free infographic to learn how to transform healthcare marketing and grow sales by delivering trust-centric experiences.

August 08, 2022

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White Paper

Cookie Consent

Succeeding in a privacy-first world with Alex Cash

In this white paper, discover strategies for data collection to further business goals and how to prioritize data while ensuring the best customer experience.

August 03, 2022

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Infographic

Cookie Consent

The ultimate cookies handbook for privacy professionals eBook

Download this guide to learn available lawful bases for tracking technologies, the future of the ePrivacy Regulation, CCPA and CPRA requirements, and more!

August 01, 2022

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Webinar

Consent & Preferences

Google Play Apps: How to follow data safety requirements

Watch this on-demand webinar with OneTrust Mobile App experts to understand Google Play's specific requirements and the benefits of data transparency.

July 19, 2022

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White Paper

Consent & Preferences

The business value of consent and preferences

Download our whitepaper to learn about a case study from OneTrust on how we transformed the consent and preferences engine of a Fortune 500 company. 

June 28, 2022

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Infographic

Consent & Preferences

Google Play Data Safety vs. Apple Privacy Nutrition Label

This infographic will review Google Play Data Safety versus Apple Privacy Nutrition Label's similarities and differences regarding privacy standards.

June 28, 2022

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Webinar

Cookie Consent

Powering game-changing experiences Ahead of a cookieless world

Watch this webinar with mParticle and OneTrust to gain guidance for preparing for a cookieless world and opportunities to future-proof your database.

June 26, 2022

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Webinar

Consent & Preferences

How to drive enhanced marketing & CX campaigns through trusted data use

Join Oracle & OneTrust to learn how to drive enhanced, privacy-centric personalization in marketing & CX campaigns through trusted data use.

June 14, 2022

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Webinar

Consent & Preferences

Keep customer trust: Manage & automate your consent compliance & data governance

Watch our webinar to learn how to set up a strong consent compliance and governance strategy to achieve privacy-first data capture, distribution and activation.

June 08, 2022

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Webinar

Consent & Preferences

Consent, preferences & first-party data

Learn how incorporating strategic consent & preference management into your business strategy can help build customer trust.

May 26, 2022

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eBook

Consent & Preferences

Global Privacy Control & OneTrust

Watch this on-demand webinar to gain an overview of what Global Privacy Control (GPC) is, the benefits of the signal, and how it works.

May 05, 2022

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Consent & Preferences

The Digital Privacy Experience newsletter

The Digital Privacy Experience Newsletter is a weekly digest on cookies, consent management, preference management, & building customer trust.

May 01, 2022

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Webinar

Consent & Preferences

Data distribution: Integrating consent & preferences into MarTech & business systems

Watch this webinar to learn how to boost your integrated marketing performance with consent & preferences in CRMs, CDPs & marketing automation systems.

April 29, 2022

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Webinar

Consent & Preferences

Google Play Data Safety: What it means for your Android apps

Learn how to prepare for the Google Play July 20th, 2022 deadline to comply with its new data transparency requirements for Android apps.

April 28, 2022

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Webinar

Consent & Preferences

Modern data transparency in apps & TVs: Building trust with multi-device users

Learn how to incorporate consent and privacy strategies to deliver transparency and choice to multi-device users in applications & TVs.

April 27, 2022

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Webinar

Cookie Consent

How marketers can adapt to a post-cookie world with OneTrust's Alex Cash

Learn how marketers can get ahead of a post-cookie world from Alex Cash, Director of Strategy, OneTrust & ExchangeWire's CEO Ciaran O'Kane.

April 06, 2022

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Webinar

Consent & Preferences

Consent governance: moving from chaos to control via data intelligence

Learn how to set up a strong consent governance strategy to achieve privacy-first data capture, distribution and activation.

April 04, 2022

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Webinar

Cookie Consent

How to prepare for the crumble of third-party cookies

Learn everything you need to know to prepare for the deprecation of third-party cookies from eMarketer & OneTrust in this on-demand webinar.

March 30, 2022

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Webinar

Consent & Preferences

Web, mobile, ctv: enhancing consumer trust in the omni-channel world

Learn how to leverage consent and preference management and cement consumer trust in your data protection practices.

March 28, 2022

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Webinar

Consent & Preferences

How to build solid digital relationships to foster trust

Join this fireside chat with OneTrust and Oracle to gain insight into how to honor privacy choices to build trust.

March 07, 2022

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Webinar

Consent & Preferences

OTT and CTV Liftoff: A deep dive into delivering personalized experiences to streamers

Learn how to incorporate consent and privacy strategies to deliver personalized experiences to streamers on OTT applications & CTV platforms.

March 06, 2022

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Webinar

Consent & Preferences

Digital Privacy Experience Summit

Sign up for the Digital Privacy Experience Newsletter and get weekly updates on global regulations and best practices for compliance. 

February 22, 2022

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Webinar

Consent & Preferences

Prioritizing data transparency: A critical ingredient in trust, loyalty and ROI

Learn how can you prioritize data transparency and share openly with consumers in order to build trust, gain loyalty and improve ROI.

January 02, 2022

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Webinar

Cookie Consent

The crumble of third-party cookies: How to prepare in 2022

Learn how your organization can leverage smart preference management to overcome the deprecation of third-party cookies.

January 02, 2022

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eBook

Consent & Preferences

Build trust and value privacy with a consent management platform

Read this eBook to learn how leveraging a consent management platform builds customer trust and helps you comply with global privacy regulations. 

October 28, 2021

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Webinar

Consent & Preferences

Google consent mode & OneTrust CMP

Learn the benefits of using Google Consent Mode with the OneTrust CMP (Cookie Consent) to balance compliance and marketing objectives.

October 27, 2021

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Webinar

Privacy Management

CCPA, CPRA, and Global Privacy Control: Moving toward a more private web

Watch this webinar to learn about Global Privacy Control (GPC), how it centralizes user opt-out preferences, and streamlines compliance with CCPA and CPRA. 

September 08, 2021

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Webinar

Consent & Preferences

Navigating a complex framework: IAB TCF 2.0 upgrade checklist

Watch this webinar where we cover the complexity the IAB TCF 2.0 framework and providing a checklist to help you navigate your migration.

July 21, 2021

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Webinar

Consent & Preferences

IAB TCF 2.0 deep dive: Overview, terminology, resources

Watch this webinar for a deep dive into the IAB TCF framework and what's new in the second version.. 

July 21, 2021

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Video

Consent & Preferences

OneTrust Consent & Preference Management demo

Watch this demo video to learn how OneTrust Consent and Preference Management Cloud streamlines the consent lifecycle and accelerates fulfillment. 

October 24, 2020

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Webinar

Privacy & Data Governance

Canadian regulatory overview

This webinar series will highlight the implications of Bill 64 for Canadian companies and advise how to maintain programs aligned to the Law's requirements.

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Webinar

Consent & Preferences

Marketer’s masterclass for privacy and personalization

The marketer’s masterclass for privacy & personalization addresses the challenges businesses face in 2022 and how to turning trust into a competitive advantage.

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