Tag: consent

Advocate General: No Valid Cookie Consent When Checkbox Is Pre-ticked

25. March 2019

On 21 of March Maciej Szpunar, Advocate General of the European Court of Justice, delivered his Opinion in the case of Planet24 GmbH against Bundesverband Verbraucherzentralen und Vebraucherverbände – Verbaucherzentrale Bundesverband e.V. (Federal Association of Consumer Organisations). In the Opinion, Szpunar explains how to obtain valid consent for the use of cookies.

In the case in question, Planet24 GmbH has organised a lottery campaign on the internet. When registering to participate in the action lottery, two checkboxes appeared. The first checkbox, which did not contain a pre-selected tick, concerned permission for sponsors and cooperation partners to contact the participant in order to inform him of their offers. The second checkbox, which was already ticked off, concerned the consent to the setting of cookies, which evaluate the user’s surfing and usage behaviour.

The Federal Association held that the clauses used infringed german law, in particular Article 307 of the BGB, Article 7(2), point 2, of the UWG and Article 12 et seq. of the TMG and filed a lawsuit in 2014 after an unsuccessful warning.

In the course of the instances, the case ended up at the German Federal Supreme Court in 2017. The German Federal Court considers that the success of the case depends on the interpretation of Articles 5(3) and 2(f) of Directive 2002/58, read in conjunction with Article 2(h) of Directive 95/46, and of Article 6(1)(a) of Regulation 2016/679. For that reason, it asked the European Court of Justice the following questions for a preliminary ruling:

(1) Does consent given on the basis of a pre-ticked box meet the requirements for valid consent under the ePrivacy Directive, the EU Data Protection Directive and the EU General Data Protection Regulation (the GDPR)?

(2) What information does the service provider have to provide to the user and does this include the duration of the use of cookies and whether third parties have access to the cookies?

According to the Advocate General, there is no valid consent if the checkbox is already ticked. In such case, the user must remove the tick, i.e. become active if he/she does not agree to the use of cookies. However, this would contradict the requirement of an active act of consent by the user. It is necessary for the user to explicitly consent to the use of cookies. Therefore, it is also not sufficient if one checkbox is used to deal with both the use of cookies and participation in the action lottery. Consent must be given separately. Otherwise the user is not in the position to freely give a separate consent.

In addition, Szpunar explains that the user must be provided with clear and comprehensive information that enables the user to easily assess the consequences of his consent. This requires that the information provided is unambiguous and cannot be interpreted. For this purpose, the information must contain details such as the duration of the operation of cookies, as well as whether third parties have access to the cookies.

WP29 Guidelines on the notion of consent according to the GDPR – Part 1

26. January 2018

According to the GDPR, consent is one of the six lawful bases mentioned in Art. 6. In order for consent to be valid and compliant with the GDPR it needs to reflect the data subjects real choice and control.

The Working Party 29 (WP 29) clarifies and specifies the “requirements for obtaining and demonstrating” such a valid consent in its Guidelines released in December 2017.

The guidelines start off with an analysis of Article 4 (11) of the GDPR and then discusses the elements of valid consent. Referring to the Opinion 15/2011 on the definition of consent, “obtaining consent also does not negate or in any way diminish the controller’s obligations to observe the principles of processing enshrined in the GDPR, especially Article 5 of the GDPR with regard to fairness, necessity and proportionality, as well as data quality.”

The WP29 illustrates the elements of valid consent, such as the consent being freely given, specific, informed and unambiguous. For example, a consent is not considered as freely given if a mobile app for photo editing requires the users to have their GPS location activated simply in order to collect behavioural data aside from the photo editing. The WP29 emphasizes that consent to processing of unnecessary personal data “cannot be seen as a mandatory consideration in exchange for performance.”

Another important aspect taken into consideration is the imbalance of powers, e.g. in the matter of public authorities or in the context of employment. “Consent can only be valid if the data subject is able to exercise a real choice, and there is no risk of deception, intimidation, coercion or significant negative consequences (e.g. substantial extra costs) if he/she does not consent. Consent will not be free in cases where there is any element of compulsion, pressure or inability to exercise free will. “

Art. 7(4) GDPR emphasizes that the performance of a contract is not supposed to be conditional on consent to the processing of personal data that is not necessary for the performance of the contract. The WP 29 states that “compulsion to agree with the use of personal data additional to what is strictly necessary limits data subject’s choices and stands in the way of free consent.” Depending on the scope of the contract or service, the term “necessary for the performance of a contract… …needs to be interpreted strictly”. The WP29 lays down examples of cases where the bundling of situations is acceptable.

If a service involves multiple processing operations or multiple purposes, the data subject should have the freedom to choose which purpose they accept. This concept of granularity requires the purposes to be separated and consent to be obtained for each purpose.

Withdrawal of consent has to be possible without any detriment, e.g. in terms of additional costs or downgrade of services. Any other negative consequence such as deception, intimidation or coercion is also considered to be invalidating. The WP29 therefore suggests controllers to ensure proof that consent has been given accordingly.

(will be soon continued in Part 2)

ICO fines bank and ad firm for illegal marketing

13. October 2017

The Information Commissioner’s Office (ICO) has fined Vanquis Bank and advertising firm Xerpla £125,000 in total.

Vanquis Bank had sent over a million spam text messages and spam emails promoting its credit card. As the recipients had not given consent for such messages, Vanquis Bank’s marketing campaign was deemed illegal and a fine of £75,000 was imposed on the Bradford based bank.

Ad firm Xerpla had sent over a million spam emails promoting various products. The ad firm was fined £50,000 for not having the right consent of the recipients as it was not clear and specific enough.

“People need to be properly informed about what they are consenting to. Telling them their details could be passed to ‘similar organisations’ or ‘selected third parties’ cannot be relied upon as specific consent,” ICO Head of Enforcement Steve Eckersley said, adding, “these firms should have taken responsibility for ensuring they had obtained clear and specific consent for the sending of the messages. They didn’t and that is unacceptable.”