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.
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.