Belgian DPA releases Guidance and FAQs on Cookies and Trackers
On Thursday, April 9th 2020, the Belgian Data Protection Authority (Belgian DPA) has issued a guidance along with frequently asked question on the subject of cookies and other tracking technologies.
The key points presented by the guidance revolve around the definitions of cookies, what needs to be presented in a cookie policy, how the consent of data subjects needs to be obtained and which requirements it needs to fulfill, as well as the storage period of a cookie on a user’s device.
The Belgian DPA made it clear that of the utmost importance is the transparency of the cookie usage. That entails that the users need to be informed about the scope of each individual cookie used. This should be done through a cookie policy on the website. The cookie policy needs to be written in a language the targeted users of the website can understand, as well as be easily accessible, e.g. through a hyperlink.
Specifically, these cookie policies need to include and inform about:
- identification of the cookies used;
- their purposes and duration;
- whether third-parties have access to such cookies;
- information about how to delete cookies;
- the legal basis relied upon for the use of cookies;
- information about individuals’ data protection rights and the ability to lodge a complaint to the competent data protection authority;
- information about any automated decision making, including profiling.
In order to be able to use cookies, the consent of the user needs to be obtained. The Belgian DPA stated in their guidance that the consent has to be obtained for the use of all non-essential cookies, which means all cookies that are not necessary for a user requested function of the website. A necessary cookie would be, for example, the cookie to remember the item in a user’s cart, or cookies that enable booking communication with a user.
The consent especially needs to be:
- obtained for the use of all non-essential cookies, as well as all social media plugins;
- informed, specifically, prior to giving their consent to the use of cookies, users must be provided with information regarding the use of cookies: The information that needs to be given to the data subjects are the entity responsible for the use of cookies, the cookies’ purposes, the data collected through the use of cookies, and their expiration. Users must also be informed about their rights with respect to cookies, including the right to withdraw their consent;
- granulated, whereas in a first instance, users need to decide between what types of cookies they want to give consent to, and in a second instance, users can decide exactly which cookies they want to give consent to;
- unambiguous and provided through a clear affirmative action.
Further, it is also important to keep in mind that the Belgian DPA has confirmed that cookie walls are unlawful, and that companies must show proof of obtained consent through keeping logs.
The Belgian DPA has also given guidance on the lifespan of cookies. Cookies should not have unlimited lifespans, but rather follow basic data protection rules: once a cookie is no longer necessary for the purpose or it has fulfilled its determined purpose, it needs to be removed. If the cookie cannot be deleted from the controller’s side, it is important to give the users the information on how to do it themselves.
Overall, the Belgian DPA’s guidance has given controllers a clear way to maneuvering their cookie usage, and has provided a new list of FAQs in case of further questions. In this regard, the Belgian DPA has made sure that cookies and their use are easy to comprehend and handle, hopefully helping data protection compliance within the subject.