Tagged: ePrivacy Directive

Planet49 CJEU Judgment brings some ‘Cookie Consent’ Certainty to Planet Online Tracking

By Gabriela Zanfir-Fortuna

This blog was first published on pdpEcho and is reproduced here with the kind permission of the editor: https://pdpecho.com/2019/10/03/planet49-cjeu-judgment-brings-some-cookie-consent-certainty-to-planet-online-tracking/

Last week, the Court of Justice of the European Union published its long-awaited judgment in the Planet49 case, referred by a German Court in proceedings initiated by a non-governmental consumer protection organization representing the participants to an online lottery. It dealt with questions which should have been clarified long time ago, after Article 5(3) was introduced in Directive 2002/58 (the ‘ePrivacy Directive’) by an amendment from 2009, with Member States transposing and then applying its requirements anachronistically:

  • Is obtaining consent through a pre-ticked box valid when placing cookies on website users’ devices?
  • Must the notice given to the user when obtaining consent include the duration of the operation of the cookies being placed and whether or not third parties may have access to those cookies?
  • Does it matter for the application of the ePrivacy rules whether the data accessed through the cookies being placed is personal or non-personal?

The Court answered all of the above, while at the same time signaling to Member States that a disparate approach in transposing and implementing the ePrivacy Directive is not consistent with EU law, and setting clear guidance on what ‘specific’, ‘unambiguous’ and ‘informed’ consent means. Continue reading

Reconsidering the blanket-data-retention-taboo, for human rights’ sake?

Belgian Constitutional Court offers CJEU chance to explain its puzzling Tele2 Sverige AB-decision

By Frank Verbruggen, Sofie Royer, and Helena Severijns

Compulsory retention, by ICT-providers, of all non-content user and traffic data, to ensure that that data will be available for subsequent use by law enforcement or intelligence, has been a controversial issue in the EU for several years now. On 19 July 2018 the Belgian Constitutional Court requested a preliminary ruling from the CJEU. Basically, it asks the EU Court to further clarify its earlier case law. The Belgian constitutional judges indicate that they find some aspects of the CJEU’s previous decisions puzzling and they also offer a new angle by explicitly linking the matter to the positive obligations of member states under the European Convention on Human Rights. The implied suggestion seems that the CJEU did not give those obligations enough weight when it found blanket data retention obligations disproportionate.   Continue reading