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The General Data Protection Regulation (GDPR) is a European Union regulation that establishes rules for the processing and protection of personal data. Its official name is Regulation (EU) 2016/679. The GDPR has applied since 25 May 2018 in all EU Member States.
The regulation does not apply only to companies established in the European Union. GDPR may also apply to organisations outside the EU when they offer goods or services to individuals in the EU or monitor their behaviour in the EU in cases covered by the regulation.
For affiliate marketing, GDPR is particularly relevant when personal data is involved in registration forms, CRM systems, email marketing, advertising identifiers, IP addresses, cookie IDs, tracking, retargeting and other forms of behavioural analysis. IP addresses, cookie IDs and advertising identifiers may constitute personal data when they can be linked directly or indirectly to an identifiable individual.
What Does GDPR Regulate?
GDPR sets requirements for how organisations collect, use, store, transfer and delete personal data. Processing includes activities such as collecting, recording, storing, modifying, using, disclosing, providing access to and deleting data.
The main GDPR principles include:
- lawfulness, fairness and transparency;
- purpose limitation — data must be collected for specified and legitimate purposes;
- data minimisation — only data necessary for the relevant purpose should be collected;
- accuracy of personal data;
- storage limitation;
- integrity and confidentiality;
- accountability — the organisation must be able to demonstrate compliance with GDPR.
GDPR does not require consent for every type of data processing. Depending on the circumstances, a lawful basis may be consent, performance of a contract, compliance with a legal obligation, protection of vital interests, a task carried out in the public interest or legitimate interests.
GDPR and Personal Data in Affiliate Marketing
Personal data can enter an affiliate funnel at several stages. A user may click an affiliate link, submit contact details, register with an advertiser, make a deposit or become an FTD (First Time Deposit). The affiliate, CPA network, advertiser and technology providers involved in the process may have different roles in relation to that data.
For example, a landing page may collect a user's name and email address, while an analytics system may process an IP address, cookie ID, click ID or other online identifiers. If such information can directly or indirectly identify an individual, it may fall within the scope of GDPR.
When using attribution in affiliate marketing, affiliates should understand what data is used to identify the traffic source and attribute a conversion. The same applies to event transfers through an API (Application Programming Interface).
Conversion tracking and postback URLs also deserve attention. When click IDs, sub IDs, transaction IDs, user IDs, email addresses, IP addresses, device identifiers or other parameters are transferred, the parties involved should understand which data qualifies as personal data, who processes it and what lawful basis applies.
The same considerations apply to traffic sources, retargeting, behavioural advertising and email marketing. In addition to GDPR, certain forms of electronic communication are subject to the ePrivacy Directive and the national laws implementing it.
Lawful Bases for Processing Personal Data
GDPR provides several lawful bases for processing personal data. In affiliate marketing, consent, contractual necessity and legitimate interests may be relevant, but the appropriate basis depends on the purpose and circumstances of the processing.
Where processing is based on consent, the consent must be freely given, specific, informed and unambiguous. Users must understand what they are agreeing to, and withdrawing consent must be no more difficult than giving it.
For example, pre-ticked boxes do not meet the requirement for an active and unambiguous indication of consent. Consent should also be clearly separated from other actions or information where necessary.
GDPR and Cookies
Cookie IDs and other online identifiers may be used for tracking, analytics, attribution and advertising personalisation. However, cookie requirements in the EU are not governed by GDPR alone. Organisations also need to consider the ePrivacy Directive and the national rules implementing it.
A privacy policy therefore does not automatically mean that a website meets all applicable requirements for cookie consent.
Data Controller and Data Processor
GDPR distinguishes between data controllers and data processors.
A data controller determines the purposes and means of processing personal data. A data processor processes personal data on behalf of a controller and follows the controller's instructions.
The role depends on the specific processing activity. As a result, the same company may act as a controller for one processing operation and a processor for another.
This distinction matters in affiliate marketing when affiliates work with CPA networks, advertisers, trackers, CRM systems and other technology providers. Where a processor handles personal data on behalf of a controller, the relationship must be governed by a contract or other legal act meeting GDPR requirements.
Data Subject Rights Under GDPR
GDPR gives individuals a number of rights concerning their personal data:
- the right to receive information about processing;
- the right of access;
- the right to rectification;
- the right to erasure;
- the right to restriction of processing;
- the right to data portability;
- the right to object.
Individuals also have the right to object to the processing of their personal data for direct marketing purposes. Once an individual objects to processing for direct marketing, the data can no longer be processed for that purpose.
As a general rule, organisations must respond to data subject requests without undue delay and, in any event, within one month.
GDPR, Tracking and Profiling
GDPR does not prohibit affiliate tracking, advertising personalisation or profiling. However, organisations must establish an appropriate lawful basis, define the purpose of processing, limit the data collected and provide mechanisms for exercising data subject rights.
If an organisation's core activities involve large-scale, regular and systematic monitoring of individuals, it may be required to appoint a Data Protection Officer (DPO). Other GDPR provisions can also trigger a DPO requirement. The European Commission specifically includes online tracking and profiling, including behavioural advertising, within the concept of monitoring individuals' behaviour.
Where processing is likely to result in a high risk to individuals' rights and freedoms, GDPR may also require a Data Protection Impact Assessment (DPIA).
GDPR in Gambling and iGaming
GDPR is relevant to affiliate marketing in gambling and iGaming when campaigns involve registrations, deposits, advertising tracking, CRM systems, email marketing or behavioural analytics.
For example, registration, deposit or lead data may be transferred between several parties in an affiliate funnel. The parties should establish who is responsible for processing, what data is transferred and for what purpose.
GDPR regulates personal data protection but does not replace national rules governing gambling advertising, licensing or promotion. Affiliates targeting a particular GEO therefore need to consider both GDPR and the applicable local regulations.
International Transfers of Personal Data
GDPR does not prohibit transfers of personal data outside the EU, but such transfers are subject to specific requirements under Chapter V of the regulation.
When using overseas CRM platforms, trackers, cloud services, advertising platforms or other technology providers, organisations should determine where the data is transferred and which GDPR transfer mechanism applies.
Depending on the circumstances, mechanisms may include:
- adequacy decisions;
- Standard Contractual Clauses (SCCs);
- Binding Corporate Rules (BCRs);
- other safeguards and mechanisms provided for by GDPR.
A GDPR transfer mechanism should not be confused with the lawful basis for processing under Article 6. These are separate requirements addressing different aspects of data processing.
Data Security and Personal Data Breaches
Controllers and processors must implement appropriate technical and organisational measures to protect personal data against unauthorised access, loss, alteration and other security incidents.
Where a personal data breach is likely to result in a risk to individuals' rights and freedoms, the controller must notify the relevant supervisory authority without undue delay and, where feasible, no later than 72 hours after becoming aware of the breach. The processor must notify the controller without undue delay.
For affiliate ecosystems, this means that data security is not limited to an affiliate's own infrastructure. It is also important to understand how breach notifications are handled across the chain:
tracker / CRM / cloud service → CPA network → advertiser.
GDPR Fines and Penalties
Supervisory authorities can impose various corrective measures for GDPR violations, including warnings, reprimands, restrictions or bans on processing and administrative fines.
For the most serious infringements, the maximum administrative fine can reach €20 million or 4% of the organisation's total worldwide annual turnover for the preceding financial year, whichever is higher.
The actual penalty depends on the nature and circumstances of the infringement.
What Affiliates Should Check
The first step is to identify what personal data is collected, why it is needed and who processes it.
Before launching a campaign, affiliates should check:
- what personal data is collected by the website, landing page or tracking system;
- whether IP addresses, cookies, advertising identifiers or other online identifiers are used;
- who acts as the controller and who acts as the processor;
- which lawful basis applies to each processing activity;
- how users are informed about data collection and use;
- how users can withdraw consent or exercise other rights;
- who receives the data and whether any services are located outside the EU;
- which GDPR transfer mechanism applies to international data transfers;
- what technical and organisational security measures are in place;
- how responsibilities are allocated if a personal data breach occurs.
When working through a CPA network, affiliates should also understand what data is shared between the affiliate, network and advertiser and what data protection responsibilities are established in the relevant partnership terms.
GDPR: Key Takeaways
GDPR does not prohibit tracking, advertising personalisation or the collection of user data. It establishes the conditions under which personal data can be processed lawfully, transparently, securely and for defined purposes.
For affiliate marketing, GDPR is particularly relevant when targeting European audiences and using tracking, analytics, CRM systems, email marketing, retargeting, profiling or data transfers between affiliates, CPA networks, advertisers and technology providers.
The specific requirements depend on the processing activity, type of data, role of each party, lawful basis and mechanism used for international transfers.
