In its recent judgment C-673/17 the CJEU clarified rules around the consent to “store information or to gain access to information stored in the terminal equipment of a subscriber or user”, or, in other words, to place cookies on a user’s machine. This case confirms what many regulators already consider status quo under the GDPR. A pre-ticked box is just not good enough.

An additional interesting fact is that the CJEU considered current law in this pre-GDPR case.

What was the case about?

The case before the German Federal Court of Justice was whether the website operator Planet49 was right to rely on a pre-ticked box as consent to place third party cookies on the user’s machine. Planet49 provided detailed information about cookies and user rights on its website but the claimant German consumer protection association did not budge on the pre-ticked boxes.

Uniform application of EU law

The court decided to look past the German law which it held would not add to a uniform application of EU law and the principle of equality. Instead, as per previous case law, account was taken of the EU law, its legislative context and objectives.

European e-Privacy rules

Essentially, consent has to be “freely given specific and informed indication of … wishes … [that] signifies … agreement”. Under the GDPR, the stricter requirement of “clear affirmative action” applies and its recitals specifically exclude pre-ticked boxes. This has put the nail in the coffin of pre-ticked boxes.

The CJEU made the following observations:

• The e-privacy rules set out in Directive 2002/58, as amended, do not indicate the “way in which that consent must be given”. However, the recitals included the “ticking a box” example and referred to the meaning of consent under the Directive 95/46.
• The Directive, now replaced by the GDPR, referred to “indication” of consent which implied some sort of action. A pre-ticked box is passive and hence insufficient.
• Reference to “unambiguously” could only be satisfied by active behaviour. A pre-ticked box would also fail to meet the “informed” requirement.
• The 2009 amendment to e-Privacy introduced the consent requirement and mere notice with the right to refuse was no longer sufficient.
• In order to be “specific”, consent must relate specifically to the purpose of processing in question and cannot be inferred from consent for other purposes.
• The court clarified that the cookies rules apply regardless of personal data being processed as e-privacy rules are intended to protect users from hidden identifiers and other devices.
• Finally, the court clarified that the reference to “clear and comprehensive information” under e-privacy means “clearly comprehensible and sufficiently detailed so as to enable the user to comprehend the functioning of the cookies employed”. Reference was made to providing information about “the period for which the personal data will be stored” under the GDPR. The information must explain “whether or not third parties may have access to those cookies”.

Third parties relying on consent

There is an additional discussion on whether third parties relying on the consent must be listed in the notice or if a reference to “categories of recipients of the data” would suffice. The CJEU stopped short of explaining if such third parties have to be explicitly named and only reiterated that the provisions in the law “expressly refer to the recipients or categories of recipients of the data”. However, the ICO and other regulators consider that listing categories will not suffice, as our cookies guide explains. Therefore, unless the parties are listed the consent will likely fail to be granular and informed and may as a result be invalid.

Next steps

The call to action for website operators is to carry out a cookie audit and implement an appropriate consent mechanism for non-essential cookies. Following the release of the ICO’s revised guidance on cookies in July, many websites remain non-compliant.

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