Tag: CJEU

CJEU rules pre-checked Cookie consent invalid

2. October 2019

The Court of Justice of the European Union (CJEU) ruled on Tuesday, October 1rst, that storing Cookies on internet users’ devices requires active consent. This decision concerns the implementation of widely spread pre-checked boxes, which has been decided to be insufficient to fulfill the requirements of a lawful consent under the General Data Protection Regulation (GDPR).

The case to be decided concerned a lottery for advertizing purposes initiated by Planet49 GmbH. During the participation process internet users were confronted with two information texts and corresponding checkboxes. Within the first information text the users were asked to agree to be contacted by other companies for promotional offers, by ticking the respective checkbox. The second information text required the user to consent to the installation of Cookies on their devices, while the respective checkbox had already been pre-checked. Therefore users would have needed to uncheck the checkbox if they did not agree to give their consent accordingly (Opt-out).

The Federal Court of Justice in Germany raised and referred their questions to the CJEU regarding whether such a process of obtaining consent could be lawful under the relevant EU jurisprudence, in particular whether valid consent could have been obtained for the storage of information and Cookies on users devices, in case of such mechanisms.

Answering the questions, the CJEU decided, referring to the relevant provisions of Directive 95/46 and the GDPR that require an active behaviour of the user, that pre-ticked boxes cannot constitute a valid consent. Furthermore, in a statement following the decision, the CJEU clarified that consent must be specific, and that users should be informed about the storage period of the Cookies, as well as about third parties accessing users’ information. The Court also said that the “decision is unaffected by whether or not the information stored or accessed on the user’s equipment is personal data.”

In consequence of the decision, it is very likely that at least half of all websites that fall into the scope of the GDPR will need to consider adjustments of their Cookie Banners and, if applicable, procedures for obtaining consent with regard to performance-related and marketing and advertising Cookies in order to comply with the CJEU’s view on how to handle Cookie usage under the current data protection law.

Cookies, in general, are small files which are sent to and stored in the browser of a terminal device as part of the website user’s visit on a website. In case of performance-related and marketing and advertising Cookies, the website provider can then access the information that such Cookies collected about the user when visiting the website on a further occasion, in order to, e.g., facilitate navigation on the internet or transactions, or to collect information about user behaviour.

Following the new CJEU decision, there are multiple possibilities to ensure a GDPR compliant way to receive users’ active consent. In any case it is absolutely necessary to give the user the possibility of actively checking the boxes themselves. This means that pre-ticked boxes are no longer a possibility.

In regard to the obligation of the website controller to provide the user with particular information about the storage period and third party access, a possible way would be to include a passage about Cookie information within the website’s Privacy Policy. Another would be to include all the necessary information under a seperate tab on the website containing a Cookie Policy. Furthermore, this information needs to be easily accessible by the user prior to giving consent, either by including the information directly within the Cookie Banner or by providing a link therein.

As there are various different options depending on the types of the used Cookies, and due to the clarification made by the CJEU, it is recommended to review the Cookie activities on websites and the corresponding procedures of informing about those activities and obtaining consent via the Cookie Banner.

Irish High Court refers Facebook case to the CJEU

6. October 2017

On October 3rd 2017, the Irish High Court publicised it will refer the Facebook case to the Court of Justice of the European Union (CJEU). The lawsuit is based on a complaint to the Irish Data Protection Commissioner filed by Max Schrems, an Austrian lawyer and privacy activist. Schrems was also involved in the case against Facebook resulting in the CJEU’s landmark decision declaring the Commission’s US Safe Harbour Decision invalid.

In his new complaint, Schrems is challenging the data transfers of Faceook to the US on the basis of the “Model Contracts for the transfer of personal data to third countries”, also known as standard contractual clauses (SCCs). Schrems himself said, “In simple terms, US law requires Facebook to help the NSA with mass surveillance and EU law prohibits just that.”

In contrast to Schrems, the Irish Data Protection Commissioner challenged the validity of the SCCs in general and not only in matters of Facebook. Due to the importance of the case, the Irish High Court referred it to the CJEU. The CJEU will now have to decide whether data transfers to the US are valid on the basis of the Commission’s Model Contracts. It remains to be seen what the CJEU will decide and if its decision will have an impact on the Privacy Shield framework.