On October 1, 2019, the Court of Justice of the European Union (“CJEU”) issued its decision in an important case involving consent for the use of cookies by a German business called Planet49. Importantly, the Court held that (i) consent for cookies cannot be lawfully established through the use of pre-ticked boxes, and (ii) any consent obtained regarding cookies cannot be sufficiently informed in compliance with applicable law if the user cannot reasonably comprehend how the cookies employed on a given website will function.

Background

In 2013, Planet49 GmbH, a German website, organized a promotional lottery online. To participate in the lottery, users were required to enter their postcode, which then prompted users to provide their names and addresses. Beneath this request for names and addresses, Planet49 sought two consents from users. The first consent pertained to users being contacted by third parties for promotional offers. The second consent pertained to cookies being dropped on users’ browsers in connection with participation in the online lottery. Planet49 sought consent for the third-party promotional offers through the use of an unticked box, and separately for the use of cookies through a pre-ticked box.

In relevant part, the CJEU was asked to consider (i) whether the ePrivacy Directive permits cookies to be dropped on the basis of consent obtained through the use of a pre-ticked box, and (ii) what information Planet49 needed to provide regarding cookies to meet its obligations under the ePrivacy Directive to provide clear and comprehensive information to the user.

Does the ePrivacy Directive Permit Cookies to Be Dropped Through the Use of a Pre-Ticked Box?

Prior to the enactment of the EU General Data Protection Regulation (“GDPR”), the ePrivacy Directive required consent for dropping cookies consistent with the standard for obtaining consent found in the Data Protection Directive. Since enactment of the GDPR, all references to the Data Protection Directive must be construed as references to the GDPR, meaning that the ePrivacy Directive requirement to obtain consent to drop cookies must meet the standard set in the GDPR for obtaining consent as of May 25, 2018. In the Planet49 case, the CJEU assessed the consent standard under both the Data Protection Directive and the GDPR on account of the fact that it was asked to assess Planet49’s behavior in the past, but also to enjoin Planet49’s behavior in the future.

In assessing this question, the Court found that in the consent standards enunciated in both the Data Protection Directive and the GDPR, consent cannot be valid unless it is “freely given” and “informed.” The Court found that requiring a user to take an active step to untick a box to signify he or she does not consent to the dropping of a cookie could not reasonably establish that consent was provided on the basis of a freely given and informed decision. To the contrary, the Court found that requiring a user to actively tick a box to signify his or her consent would be a far more probable indication of the user’s wishes. In addition, through the use of a pre-ticked box, the Court found that Planet49 is, in essence, seeking consent to participation in the online lottery and consent to the dropping of cookies simultaneously through the use of a single button signifying the user’s participation. As a result, the Court found that any consent to cookies dropping through the use of a pre-ticked box cannot be freely given in accordance with the legal standard found in the Data Protection Directive and GDPR.

What Information Must Be Provided to Users Regarding Cookies to Meet ePrivacy Directive Requirements?

Under the ePrivacy Directive, consent for cookies can be lawfully obtained only if the user has been provided with clear and comprehensive information in accordance with data protection law requirements (i.e., the Data Protection Directive and subsequently the GDPR). Both the Data Protection Directive and the GDPR impose an obligation to inform data subjects with respect to the purposes for which users’ data is processed.

In the context of cookies, the CJEU determined that clear and comprehensive information should permit the user to easily determine the consequences of his or her consent, it should be unambiguous and clearly comprehensible to the average internet user, and sufficiently detailed to permit the user to understanding the cookie functionality. Accordingly, the Court found that (i) information regarding the duration of the operation of cookies was essential to enabling users to make informed decisions, and (ii) information regarding whether third parties have access to the cookies set and, if so, the identity of those third parties must be provided to support an argument that the consent is properly informed.

View the press release and the full judgment.