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No cookie consent walls — and no, scrolling isn’t consent, says EU data protection body

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You can’t make access to your website’s content dependent on a visitor agreeing that you can process their data — aka a ‘consent cookie wall’. Not if you need to be compliant with European data protection law.

That’s the unambiguous message from the European Data Protection Board (EDPB), which has published updated guidelines on the rules around online consent to process people’s data.

Under pan-EU law, consent is one of six lawful bases that data controllers can use when processing people’s personal data.

But in order for consent to be legally valid under Europe’s General Data Protection Regulation (GDPR) there are specific standards to meet: It must be clear and informed, specific and freely given.

Hence cookie walls that demand ‘consent’ as the price for getting inside the club are not only an oxymoron but run into a legal brick wall.

No consent behind a cookie wall

The regional cookie wall has been crumbling for some time, as we reported last year — when the Dutch DPA clarified its guidance to ban cookie walls.

The updated guidelines from the EDPB look intended to hammer the point home. The steering body’s role is to provide guidance to national data protection agencies to encourage a more consistent application of data protection rules.

The EDPB’s intervention should — should! — remove any inconsistencies of interpretation on the updated points by national agencies of the bloc’s 27 Member States. (Though compliance with EU data protection law tends to be a process; aka it’s a marathon not a sprint, though on the cookie wall issues the ‘runners’ have been going around the tracks for a considerable time now.)

As we noted in our report on the Dutch clarification last year, the Internet Advertising Bureau Europe was operating a full cookie wall — instructing visitors to ‘agree’ to its data processing terms if they wished to view the content.

The problem that we pointed out is that that wasn’t a free choice. Yet EU law requires a free choice for consent to be legally valid. So it’s interesting to note the IAB Europe has, at some point since, updated its cookie consent implementation — removing the cookie wall and offering a fairly clear (if nudged) choice to visitors to either accept or deny cookies for “aggregated statistics”…

As we said at the time the writing was on the wall for consent cookie walls.

The EDPB document includes the below example to illustrate the salient point that consent cookie walls do not “constitute valid consent, as the provision of the service relies on the data subject clicking the ‘Accept cookies’ button. It is not presented with a genuine choice.”

It’s hard to get clearer than that, really.

Scrolling never means ‘take my data’

A second area to get attention in the updated guidance, as a result of the EDPB deciding there was a need for additional clarification, is the issue of scrolling and consent.

Simply put: Scrolling on a website or digital service can not — in any way — be interpreted as consent.

Or, as the EDPB puts it, “actions such as scrolling or swiping through a webpage or similar user activity will not under any circumstances satisfy the requirement of a clear and affirmative action” [emphasis ours].

Logical reason being such signals are not unambiguous. (Additionally, the EDPB example raises the point of how would a user withdraw consent if such a signal were valid? By scrolling back up the same web page? Obviously that would be ridiculous and confusing.)

Here’s the relevant example from the document:

Again, harder to get clearer than that.

So any websites still trying to drop tracking cookies the moment a site visitor scrolls the page are risking regulatory enforcement. (Reminder: GDPR fines can scale as high as €20M or 4% of global annual turnover.)

Nonetheless, recent research suggests cookie consent theatre remains rife in the EU — albeit, not only limited to the ‘scroll and you’ve been tracked’ flavor of the practice.

Manipulative consent pop-ups and dark patterns also remain a major problem, with such tactics being actively deployed to undermine legal protections for EU citizens’ data.

Still, a lot of clarifying light has now been shone into this area by both regulators and courts, shrinking the operating space for bad faith actors.

A ruling by the European Court of Justice last year made it clear that active consent is required for tracking cookies, for example — also demolished ‘pre-checking’ as a valid way of gathering consent, among other stipulations.

Plus there’s increasing pressure on regulators to actually enforce the rules — with GDPR’s two year anniversary fast approaching.

So where consent is concerned, the rule of thumb, if you need one, is you can’t steal consent nor conceal consent. And if you wish to shortcut consent you can only do so if your shortcut is A) clearly and accurately signposted and B) you offer a similarly easy route to opt-out again. Simples.

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