EDPB issues updated guidance re ‘cookie law’

Back

Introduction

Many organisations still struggle to understand ‘cookie law’, i.e. the steps they must take to ensure the cookies on their website comply with applicable law. The European Data Protection Board (EDPB) has recently updated its guidance on this contentious topic.

Standard of Consent

The need for consent for the use of (non-essential) cookies derives from (in the UK) the Privacy in Electronic Communications Regulations (PECR), which is to the effect that storing or accessing information on a user’s equipment is only allowed on the condition that the user receives sufficient notice and provides consent to such activity.

The consent is the same as is required by the GDPR’s definition of consent, meaning it must be a freely given, specific, informed, and unambiguous indication. It is the website controller’s responsibility to be able to demonstrate that consent was validly gained, and failure to prove valid consent can result in fines. (However, consent is not required for cookies which are strictly necessary for the provision of the service).

Consent not given with Cookie Walls

When access to a website’s content is blocked and made conditional on the user consenting, such consent is not truly freely given and therefore is not valid.

Continued Browsing Does Not Constitute Consent

The EDPB says that someone’s continued browsing of a website is not enough to constitute consent.

Refreshed Consent Required

Because the law does not specify how long consent, once given, will last, the EDPB says consent should be refreshed at ‘appropriate intervals’.

Demonstrating Valid Consent

The EDPB says that organisations should consider retaining:

  • information on the session in which consent was expressed together with documentation of the consent workflow at the time; and
  • a copy of the information presented to the user.

Conclusion

Grey areas remain and may be addressed in future rulings with the eventual adoption of an ePrivacy Regulation, which currently continues working through the EU legislative process.

I’m thrilled to have signed off on the CSaaS offering.  I’m looking forward to having the most complete cyber security package for the mid-market and continuing our successful working relationship with norm.

Richard Taylor, CIO
Summit Therapeutics

CSaaS allows me to step away from multi-vendor management as the Security Operations Centre coordinates all of the technology for me.

David Vincent, CTO
Perpetuum

The biggest factor was that they had a data protection lawyer in-house who worked for them, which meant there was someone we could directly go to with specific questions about the (GDPR) regulation.

Phil Everitt, Management Information Systems Manager
Leicester Tigers

We were in the market for an independent Data Protection Officer service that was well versed with both UK and EU regulators. We’re thrilled to have acquired this service knowing that an expert is available 24/7.

Suzanne McCabe, Head of Project Management
James Hambro & Partners

Norm’s penetration testing layer, along with the suite of CSaaS modules has enabled MA to exceed all its audit requirements for its major clients.

Rob Elisha, ICT and CRM Manager
Montreal Associates

The speed of your Data Protection Officer’s response was very impressive – it was far quicker than I would have expected even from an in-house DPO

Will Blake, Director of Technology and Analytics
CRU Group