In its judgment of 1 October 2019, the European Court of Justice (ECJ) decided on cookie consent requirements under the General Data Protection Regulation 2016/679/EU (GDPR) and the Cookie Directive 2002/58/EC (Cookie Directive) (Case C-673/17, Planet49 GmbH v. Bundesverband der Verbraucherzentralen und Verbraucherverbände – Verbraucherzentrale Bundesverband e.V. (the Judgment)).

The ECJ set clear requirements on what cookie consent must look like. However, the requirements for when websites must ask for cookie consent may vary from one EU member state to another as some member states, such as Germany, have not implemented the Cookie Directive and the Judgment, therefore, does not apply directly.

As a rule of thumb, it can be said that, at minimum, websites must ask for cookie consent for all cookies other than cookies that are technically required to operate the website or to provide the website service to the user. In other words, tracking, marketing and analytics cookies may only be used with explicit, clear, informed (Art. 13 GDPR) and prior consent.

Background

The case involved a promotional lottery, which was presented with two checkboxes:

  • A checkbox obtaining consent for marketing emails that was not pre-ticked, but was mandatory to tick in order to participate in the lottery (Marketing Checkbox)
  • A pre-ticked checkbox obtaining consent to cookies, which users could opt out of at any time (Cookie Checkbox)


Continue Reading Compliant use of cookies in the EU is still a secret recipe: ECJ decides on Planet49, but does not provide clarity

On 21 March 2019, Advocate General Maciej Szpunar (“AG”) delivered an opinion on cookie consent, information obligations regarding cookies and consent bundling (Case C-673/17, Planet49 GmbH v. Bundesverband der Verbraucherzentralen und Verbraucherverbände – Verbraucherzentrale Bundesverband e.V.). In the case at issue, users entering into a promotional lottery were confronted with two checkboxes:

  • A checkbox obtaining consent for marketing emails that was not pre-ticked, but was mandatory to tick in order to participate in the lottery (“Marketing Checkbox”)
  • A pre-ticked checkbox obtaining consent to cookies, which users could opt out of at any time (“Cookie Checkbox”)

Cookie consent

Article 4(11) of the General Data Protection Regulation (“GDPR”) defines consent as any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her.

The AG stated that there was no active consent in this instance because the Cookie Checkbox was pre-ticked. It is not sufficient to be considered active consent if the user must object (by un-ticking the checkbox) to the use of cookies.

Continue Reading Planet49: Advocate General’s opinion on cookies and consent bundling