This article was published in 2019. Laws, case law and regulatory guidance may have changed since then. Contact us for up to date advice.
**Introduction **Placing cookies requires the active consent of the user of a website. A pre-ticked checkbox for cookies is therefore invalid.
Structure of this article
In this article, we discuss the so-called Planet49 ruling of the Court of Justice of the European Union (hereinafter the Court). In the first part, we discuss the essence of the ruling (what the court decided). In part 2, we answer the question of what this ruling means for the owners of websites where cookies are used and collected. In part 3, we answer the question of what you can do yourself.
1.Essence of the ruling
In its judgment of 1 October, the Court ruled that the consent of a website user to the placing of cookies on, and the accessing of cookies from, his equipment had not been validly given. This is because a pre-ticked checkbox was used for this purpose, which the user had to untick if he refused to consent to the placing of cookies.
The Court emphasises that consent must be “specific”, which means ‘that the mere fact that the user clicked the button to take part in the promotional lottery does not mean that he can be deemed to have validly consented to the placing of cookies.’
“That the mere fact that the user clicked the button to take part in the promotional lottery does not mean that he can be deemed to have validly consented to the placing of cookies.”
In addition, the service provider must give the user more information. For example, about how long the cookies remain active. Whether or not third parties may have access to the cookies placed is also highly relevant.
2. What does this ruling mean for you?
With this ruling, the Court confirms the applicable privacy rules for the use of cookies on websites. At the same time, the Court provides more clarity about how website owners can validly obtain consent for placing cookies. This ruling shows that, as a website owner, you must clearly inform the user in advance about the cookies used, their purpose and the retention periods. You must also give users the option to choose for themselves which cookies they accept on their laptop, etc. Pre-ticking cookies is therefore not legally valid.
3. What can you do yourself?
In the paragraph above, we have explained what the Court’s Planet49 ruling means for you. Most websites still use pre-ticked checkboxes. There is a good chance that you also use pre-ticked checkboxes. In practice, we also see that most websites do not inform the user, or do not fully inform the user, about the use of cookies. This too is contrary to the cookie rules. Have your website scanned free of charge by us and find out whether your website complies with the privacy rules. Within 24 hours we will give you appropriate advice, so that your website complies with the strict cookie rules.
Would you like support in setting up your cookie management? Feel free to contact us.