News & Insights

The way the cookie consent crumbles

ECJ ruling that cookie consent must be active and specific.

On the 1 October 2019 the European Court of Justice provided its preliminary ruling on a referral from Germany’s Federal Court of Justice (Bundesgerichtshof) on questions relating to what constitutes valid cookie consent and the provision of adequate privacy information about the use of website cookies.

The case related to a German company (Planet49) which operated an online promotional lottery. Plant 49 used a pre-checked box for recording the fact that website visitors participating in the lottery “consented” to Plant49 using cookies to collect information which would then be used for targeted advertising by Planet49’s partners.

Decisions were made on the following key issues:

  • Consent to the storage of, or access to, information on a website visitor’s equipment (for example by using cookies) cannot be validly obtained through the use of a pre-checked box, i.e. which the visitor must deselect to refuse his/her.
  • If the “consent” is pre-determined, the visitor has not provided active and specific consent.
  • The requirement for valid consent applies whether or not the cookies are used to collect personal data.
  • The requirement to provide “clear and comprehensive information” under the E-Privacy Directive, includes providing information relating to the duration of the cookies and whether third parties have access to them.

The ECJ did not consider whether requiring a website visitor to consent to the use of cookies so that information could be collected for advertising purposes, as a prerequisite for participation in a lottery, was “freely given” consent.

The ECJ’s ruling is not very surprising given that the GDPR requires consent to be freely given, specific, informed and unambiguous. However, it may prompt some businesses to make changes to their existing cookie policies and the way they collect consent to the use of cookies.

If you have any questions or would like us to review your cookie policies and consent notices please do contact a member of the Commercial and Technology Team.