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  • Pre-checked box does not give consent to cookies under EU privacy directive and GDPR

    Privacy, Cyber Risk & Data Security

    On October 1, the European Court of Justice held that, under the Privacy and Electronic Communications Directive (ePrivacy Directive), a website user does not “consent” to the use of a cookie when a website provides a “pre-checked box” that needs to be deselected for a user to withdraw consent. According to the judgment, a consumer group brought an action in German court against a German lottery company, challenging the website’s use of a pre-checked box allowing the website to place a cookie—text files stored on the user’s computer allowing website providers to collect information about a user’s behavior when the user visits the website—unless the consumer deselected the box. The consumer group argued that the pre-selection of the box is not valid consent under the ePrivacy Directive. The lower court had upheld the action in part, but, following an appeal, the German Federal Court of Justice stayed the proceedings and referred the matter to the EU Court of Justice.

    The Court agreed with the consumer group, concluding that the practice violated the law by not requiring users to give active, express consent to the use of the cookies. Specifically, the Court noted that the 2009 amendments to Article 5(3) of the ePrivacy Directive, which requires the website user to give “his or her consent, having been providing with clear and comprehensive information,” must be interpreted literally “to which action is required on the part of the user in order to give his or her consent.” Because the box allowing the use of cookies was checked by default, “[i]t is not inconceivable that a user would not have read the information accompanying the preselected checkbox, or even would not have noticed that checkbox, before continuing with his or her activity on the website visited,” and therefore, it would “appear impossible” to determine whether a user gave consent to the cookies by not “deselecting a pre-ticked checkbox nor, in any event, whether that consent had been informed.” The Court noted that “[a]ctive consent is thus now expressly laid down in [the EU General Data Protection Regulation (GDPR)],” and that it “expressly precludes ‘silence, pre-ticked boxes or inactivity’ from constituting consent.’” Moreover, the Court held the ePrivacy Directive also requires that, among other information, “the service provider must [disclose] to a website user . . . the duration of the operations of cookies and whether or not third parties may have access to those cookies” to give effect to “clear and comprehensive information.”

    Privacy/Cyber Risk & Data Security European Union Consent Of Interest to Non-US Persons

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