Documentation

Cookies and the GDPR: What’s Really Required?

When you think about data law and privacy legislations, cookies easily come to mind as they’re directly related to both. This often leads to the common misconception that the use of cookies is governed by the General Data Protection Regulation (GDPR), which in fact, it is not: cookie usage and it’s related consent acquisition are not governed by the GDPR, they are instead governed by the ePrivacy Directive.

In Short:

  • Cookie usage is governed by the ePrivacy Directive (Cookie law) and not the GDPR.
  • Cookie law requires users’ informed consent before storing cookies on a user’s device and/or tracking them.
  • Consent to cookies must be informed and based on an explicit affirmative action; subject to the local authority, these actions may include continued browsing, clicking, scrolling the page or some method that requires the user to actively proceed.
  • The Cookie Law does not require that records of consent be kept but instead indicates that you should be able to prove that consent occurred —even if that consent has been withdrawn.
  • The cookie law does not require that you provide users with the means to toggle cookie preferences directly on your site/app, only that you conspicuously provide the option for obtaining informed consent, provide a means for the withdrawal of consent and guarantee via prior blocking that no tracking is performed before consent is obtained.
  • The cookie law does not require that you individually list third-party cookies, only that you state their category and purpose.
  • While the Cookie Law does not require that you manage consent for third-party cookies directly on your site/app, you are required to inform users of third-party cookie usage, the purpose of the cookies and link to the relevant third-party privacy/cookie policies.

The ePrivacy Directive 2002/58/EC (or Cookie Law) was established to put guidelines and expectations in place for electronic privacy, including email marketing and cookie usage, and it still applies today. You can think of the ePrivacy Directive as currently “working alongside” the GDPR in a sense, rather than being repealed by it.

Generally, Directives set certain agreed-upon goals and guidelines in place with member states being free to decide how to make these directives into national legislation. Regulations, on the other hand, are legally binding across all Member States from the moment they are put into effect and they are enforced according to union-wide established rules. With that said, the ePrivacy Directive is, in fact, going to be repealed soon by the ePrivacy Regulation. The ePrivacy Regulation is expected to be finalized in the near future and will work alongside the GDPR to regulate the requirements for the use of cookies, electronic communications, and related data/privacy protection. The Regulation is expected to maintain values similar to the Directive with much of the same guidelines applying.

What exactly does the Cookie Law require?

The Cookie Law requires users’ informed consent before storing cookies on a user’s device and/or tracking them.

This means that if your site/app (or any third-party service used by your site/app) uses cookies, you must inform users about your data collection activities and give them the option to choose whether it’s allowed or not; you must obtain informed consent prior to the installation of those cookies.

In practice, you’ll need to show a banner at the user’s first visit, implement a cookie policy and allow the user to provide consent. Prior to consent, no cookies — except for exempt cookies — can be installed.

The banner must:

  • briefly explain the purpose of the installation of cookies that the site uses;
  • clearly state which action will signify consent;
  • be sufficiently conspicuous so as to make to make it noticeable;
  • link to (a cookie policy) or make available details of cookie purpose, usage, and related third-party activity.

The cookie policy must:

  • describe in detail the purpose of installation of cookies;
  • indicate all the third parties who install or that could install cookies, with a link to the respective privacy policy, cookie policy, and any consent forms.

Blocking cookies before consent:

In compliance with the general principles of privacy legislation, which prevent the processing before consent, the cookie law does not allow the installation of cookies before obtaining user consent. In practice, this means that you may have to employ a form of script blocking prior to user consent.

Consent to cookies:


Consent to cookies must be informed and explicit, and can be provided by a clear affirmative (opt-in) action.
The Working Party document on the Cookie Law states:

to ensure that a consent mechanism for cookies satisfies the conditions in each Member State such consent mechanism should include each of the main elements specific information, prior consent, indication of wishes expressed by user’s active behaviour and an ability to choose freely.

Subject to the local authority, these active behaviors may include continued browsing, clicking, scrolling the page or some method that requires the user to actively proceed; this is somewhat left up to your discretion. Some website/app owners may favor a click-to-consent method over scrolling/continued-browsing methods as the former is less likely to be performed by user error.

In regards to the refusal of consent or opting-out after consent has been given, the law states that users must be “given the possibility” to refuse or withdraw their consent. The Working Party document further elaborates on this point by stating that in regards to withdrawing or refusing consent, you must provide:

  • information on how users can withdraw consent and the action required to do so;
  • a means by which the user can choose to accept or decline cookies.

This means or mechanism does not have to be hosted directly by you. In most cases under member state law, browser settings are considered to be an acceptable means of withdrawing consent (our solution goes a bit further than this by pointing to the browser options, third-party tools and by linking to the third party providers, who are ultimately responsible for managing the opt-out for their own tracking tools). It is further worth clarifying here that the Cookie Law does not require that you provide users with the means to toggle cookie preferences directly on your site/app, only that you conspicuously provide the option for obtaining informed consent, provide a means for the withdrawal of consent and guarantee, via prior blocking, that no tracking is performed before the user has provided consent.

You are also not required to manage consent for third-party cookies directly on your site/app as this responsibility falls to the individual third-parties. You are, however, required to at least facilitate the process by linking to the relevant policies of these third-parties. These links should be accompanied by information related to the use, purpose, and type of cookies and, ideally, should be included in your cookie policy.

Listing third-party cookies

In general, the directive does not specifically require that you list and name individual third-party cookies, however, you are required to clearly state their categories and purpose. This decision by the Authority is likely deliberate as to require such would mean that individual website/app owners would bear the burden of constantly watching over every single third-party cookie, looking for changes that are outside of their control; this would be largely unreasonable, inefficient and likely unhelpful to users. To further expand on this point, here’s an excerpt from the ICO’s Cookie Guide:

It could be an option to provide long lists of all cookies implemented, but for most users a broader explanation of the way cookies operate and of the categories of cookies used will be helpful. A description of the types of things analytical cookies are used for on the site will be more likely to satisfy the requirements than simply listing all the cookies you use with basic references to their function.

This sentiment is even further elaborated upon by the Italian Data Protection Authority (the Garante Privacy) which expressly states:

There are several reasons why it would appear impossible to require a publisher to provide information on and obtain consent for the installation of cookies on his own website also with regard to those installed by “third parties“.
In the first place, a publisher would be required to always be equipped with the tools and the legal and business skills to take upon himself the obligations of third parties – thus, the publisher would be required to check, from time to time, that what is declared by the third parties corresponds to the purposes they are actually aiming at via their cookies. This is a daunting task because a publisher often has no direct contacts with all the third parties installing cookies via his website, nor does he/she know the logic underlying the respective processing. Furthermore, it is not seldom the case that licensees step in between a publisher and the said third parties, which makes it ultimately highly difficult for the publisher to keep track of the activities of all the stakeholders.
Secondly, third parties’ cookies might be modified by the third parties with time, and it would prove rather dysfunctional to require publishers to keep track also of these subsequent changes.
Furthermore, one should also consider that publishers – a category including natural persons and SMEs – are often the “weaker” party in this context. Conversely, third parties are usually large companies of substantial economic import that work as a rule with several publishers, so that one publisher may often have to do with a considerable number of third parties.
For all of the above reasons, this DPA is of the opinion that publishers may not be required to include, on the home page of their websites, also the notices relating to the cookies installed by third parties via the publishers’ websites.

“Freely given” consent:

The law mandates that the consent attained must be freely given in order for it to be considered valid. Using coercive methods for obtaining can, therefore, render the consent attained under such methods invalid. The law does make some concessions (within reason) where the rendering of particular site services are affected by the consent or lack thereof. The Working Party document states:

websites should not make conditional ‘general access’ to the site on acceptance of all cookies but can only limit certain content if the user does not consent to cookies.

Therefore, while certain content (within legitimate reason) can be restricted based on cookie preferences, users’ ability to generally access your site must not be coerced or conditional upon their consent.

Exemptions to the consent requirement:

Some cookies are exempt from the consent requirement and therefore are not subject to preventive blocking (though you’re still required to have the banner and cookie policy in place). The exemptions are as follows:

  • Technical cookies strictly necessary for the provision of the service. These include preference cookies, session cookies, load balancing, etc.
  • Statistical cookies managed directly by you (not third-parties), providing that the data is not used for profiling
  • Statistical (anonymized) third-party cookies (e.g. Google Analytics)*

*This exemption is may not be applicable for all regions and is therefore subject to specific local regulations.

Proof of consent vs Records of consent:

The Cookie Law does not require that records of consent be kept but instead indicates that you should be able to prove that consent occurred (even if that consent has been withdrawn). The simple way to do this would be to use a cookie solution that employs a prior blocking mechanism as under such circumstances, cookie installing scripts will only be run after consent is attained. In this way, the very fact that scripts were run may be used as sufficient proof of consent.
To further illustrate this point, imagine that the ability to run cookies is a room, the cookie solution is the door and the consent is the act of rotating the door handle; you can only enter through the door into the room if the door handle is rotated (the act of giving consent). In this example, if you’ve entered the room it can only be because the door handle was rotated and, therefore, your presence in the room is sufficient proof of this fact.

While actually keeping track of the consent acquired is not specifically mentioned by the Directive, some Member State guidelines may require it. Italy, for example, requires that.

the publisher must in any case keep track of the user’s consent. To that end, an ad-hoc technical cookie might be relied upon . . . The availability of this type of “documentation” of the user’s preferences will enable the publisher not to display the information notice on subsequent visits made by that user to the website.

This means that making use of a technical cookie in such a way (as quoted) is sufficient and may be relied upon to meet the State’s requirement of “keeping track” of the consent acquired. The Authority prescribes a maximum validity (the ability to “remember” or “keep track” of the consent) of 12 months from the last site visit. The iubenda Cookie Solution makes use of this method of “consent tracking”.

How iubenda can help you to meet requirements

Our comprehensive Cookie Solution simplifies compliance with provisions of the European Cookie Law. It allows you to easily inform users via banner and a dedicated cookie policy page (which is automatically linked to your privacy policy and integrates what’s necessary for cookie law compliance); obtain and save cookie consent settings and preventively block scripts prior to consent.

Our solution adequately informs the user of:

  • Potential cookies, their purpose and how they’re used
  • Third-party cookies, their type and their purpose (with direct links to the relevant third-party policies )
  • Their (various) options in regards to opting-in/providing consent and opting-out/withdrawing consent
  • Which action will signify consent
  • How they can manage their cookie preferences

Our solution allows for the acquisition of active consent via:

  • Continued browsing
  • Scrolling
  • Specific clicking action

Our solution gives you further options to:

  • Choose between “with prior consent” (script blocking prior to user consent and reactivation after consent) or “no prior consent” (no prior script blocking); using the “with prior consent” option ensures that before providing consent, the user can open the cookie policy and opt-out of any of the tracking scripts by using the opt-out tools provided by each third party. Remember script blocking prior to consent is required in some regions including the EU.
  • Keep track of consent and save consent settings for each user for up to 12 months from the last site visit, as legally required.
  • Customize the location and look of your banner. E.g. Changing banner colors to match your website or adding an “I accept” button.
  • Easily embed into your site (choose between directly pasting the embed code into the head section of your site’s pages or using a plugin).

It’s easy to run, fast and customizable. You can see how it works here

 

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