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.
The core of the Court findings is that:
- pre-ticked boxes do not amount to valid consent,
- expiration date of cookies and third party sharing should be disclosed to users when obtaining consent,
- different purposes should not be bundled under the same consent ask,
- in order for consent to be valid ‘an active behaviour with a clear view’ (which I read as ‘intention’) of consenting should be obtained (so claiming in notices that consent is obtained by having users continuing to use the website very likely does not meet this threshold) and,
- (quite consequential), these rules apply to cookies regardless of whether the data accessed is personal or not.
Unfortunately, though, the Court did not tackle one other very important issue: what does ‘freely given’ consent mean? In other words, would requiring and obtaining consent for placing cookies with the purpose of online tracking for behavioural advertising as a condition to access an online service, such as an online lottery (as in Planet49’s case), be considered as ‘freely given’ consent?
An answer to this question would have affected all online publishers and online service providers that condition access to their services to allowing online behaviour tracking cookies being installed on user devices and rely on ‘cookie walls’ as a source of income for their businesses. What is interesting is that the Court included a paragraph in the judgment specifically enunciating that it does not give its view on this issue because it was not asked to do so by the referring German Court (paragraph 64). Notably, ‘freely given’ is the only of the four conditions for valid consent that the Court did not assess in its judgment and that it specifically singled out as being left out in the open.
Finally, one very important point to highlight is that the entirety of the findings were made under the rules for valid consent as they were provided by Directive 95/46. The Court even specified that its finding concerning ‘unambiguous’ consent is made under the old directive. This is relevant because the definition of consent in Article 2(h) of Directive 95/46 only refers to ‘any freely given specific and informed indication’ of agreement. However, Article 7(a) of the directive provides that the data subject’s consent may make a processing lawful if it was given ‘unambiguously’.
With the GDPR, the four scattered conditions have been gathered under Article 4(11) and have been reinforced by clearer recitals. The fact remains that conditions for valid consent were just as strong under Directive 95/46. The Court almost ostensibly highlights that its interpretation is made on the conditions provided under the old legal regime and they only apply to the GDPR ‘a fortiori‘ (paragraph 60); (see here for what a fortiori means in legal interpretation).
Consequently, it seems that consent obtained for placing cookies with the help of pre-ticked boxes or through inaction or action without intent to give consent, even prior to the GDPR entering into force, has been unlawfully obtained. It remains to be seen if any action by supervisory authorities will follow to tackle some of those collections of data built relying on unlawfully obtained consent, or whether they will take a clean slate approach.
For a deeper dive into the key findings of the Planet49 CJEU judgment, read below:
Discrepancies in applying ePrivacy at Member State level, unjustifiable based on Directive’s text
Before assessing the questions referred on substance, the Court makes some preliminary findings. Among them, it finds that ‘the need for a uniform application of EU law and the principle of equality require that the wording of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union’ (paragraph 47). Article 5(3) of the ePrivacy Directive does not provide any room for Member State law to determine the scope and meaning of its provisions, by being sufficiently clear and precise in what it asks the Member States to do (see paragraph 46 for the Court’s argument).
In practice, divergent transposition and implementation of the ePrivacy Directive has created different regimes across the Union, which had consequences for the effectiveness of its enforcement.
‘Unambiguous’ means ‘active behavior’ and intent to give consent
The Court starts its assessment from a linguistic interpretation of the wording of Article 5(3) of Directive 2002/58. It notes that the provision doesn’t require a specific way of obtaining consent to the storage of and access to cookies on users’ devices. The Court observes that ‘the wording ‘given his or her consent’ does however lend itself to a literal interpretation according to which action is required on the part of the user in order to give his or her consent.
In that regard, it is clear from recital 17 of Directive 2002/58 that, for the purposes of that directive, a user’s consent may be given by any appropriate method enabling a freely given specific and informed indication of the user’s wishes, including by ticking a box when visiting an internet website‘ (paragraph 49).
The Court highlights that per Article 2(f) of Directive 2002/58 the meaning of a user’s ‘consent’ under the ePrivacy Directive is meant to be the same as that of a data subject’s consent under Directive 95/46 (paragraph 50). By referring to Article 2(h) of the former data protection directive, the Court observes that ‘the requirement of an ‘indication’ of the data subject’s wishes clearly points to active, rather than passive, behaviour’ (paragraph 52). The Court then concludes that ‘consent given in the form of a preselected tick in a checkbox does not imply active behaviour on the part of a website user’ (paragraph 52).
Interestingly, the Court points out that this interpretation of what ‘indication’ means ‘is borne out by Article 7 of Directive 95/46’ (paragraph 53), and in particular Article 7(2) which ‘provides that the data subject’s consent may make such processing lawful provided that the data subject has given his or her consent ‘unambiguously’’ (paragraph 54). So even if the definition of consent in Directive 95/46 does not refer to this condition in particular, the Court nevertheless anchored its main arguments in it.
The Court then made another important interpretation concerning what ‘unambiguous’ consent means: ‘Only active behaviour on the part of the data subject with a view to giving his or her consent may fulfil that requirement’ (paragraph 54). This wording (‘with a view to’) suggests that there is a condition of willfulness, of intent to give consent in order for the indication of consent to be lawful.
In addition, to be even clearer, the Court finds that ‘it would appear impossible in practice to ascertain objectively whether a website user had actually given his or her consent to the processing of his or her personal data by not deselecting a pre-ticked checkbox nor, in any event, whether that consent had been informed. It is not inconceivable that a user would not have read the information accompanying the preselected checkbox, or even would not have noticed that checkbox, before continuing with his or her activity on the website visited” (paragraph 55).
A fortiori, it appears impossible in practice to ascertain objectively whether a website user had actually given his or her consent to the processing of his or her personal data by merely continuing with his or her activity on the website visited (continuing browsing or scrolling), nor whether the consent has been informed, provided that the information given to him or her does not even include a pre-ticked checkbox which would at least give the opportunity to uncheck the box. Also, just like the Court points out, it is not inconceivable that a user would not have read the information announcing him or her that by continuing to use the website they give consent.
With these two findings in paragraphs 54 and 55 the Court seems to clarify once and for all that informing users that by continuing their activity on a website signifies consent to placing cookies on their device is not sufficient to obtain valid consent under the ePrivacy Directive read in the light of both Directive 95/46 and the GDPR.
‘Specific’ means consent can’t be inferred from bundled purposes
The following condition that the Court analyzes is that of specificity. In particular, the Court finds that ‘specific’ consent means that ‘it must relate specifically to the processing of the data in question and cannot be inferred from an indication of the data subject’s wishes for other purposes” (paragraph 58). This means that bundled consent will not be considered valid and that consent should be sought granularly for each purpose of processing.
‘Informed’ means being able to determine the consequences of any consent given
One of the questions sent for a preliminary ruling by the German Court concerned specific categories of information that should be disclosed to users in the context of obtaining consent for placing cookies. Article 5(3) of the ePrivacy Directive requires that the user is provided with ‘clear and comprehensive information’ in accordance with Directive 95/46 (now replaced by the GDPR). The question was whether this notice must also include (a) the duration of the operation of cookies and (b) whether or not third parties may have access to those cookies.
The Court clarified that providing ‘clear and comprehensive’ information means ‘that a user is in a position to be able to determine easily the consequences of any consent he or she might give and ensure that the consent given is well informed. It must be clearly comprehensible and sufficiently detailed so as to enable the user to comprehend the functioning of the cookies employed’ (paragraph 74). Therefore, it seems that using language that is easily comprehensible for the user is important, just as it is important painting a full picture of the function of the cookies for which consent is sought.
The Court found specifically with regard to cookies that ‘aim to collect information for advertising purposes’ that ‘the duration of the operation of the cookies and whether or not third parties may have access to those cookies form part of the clear and comprehensive information‘ which must be provided to the user (paragraph 75).
Moreover, the Court adds that ‘information on the duration of the operation of cookies must be regarded as meeting the requirement of fair data processing‘ (paragraph 78). This is remarkable, since the Court doesn’t usually make findings in its data protection case-law with regard to the fairness of processing. Doubling down on its fairness considerations, the Court goes even further and links fairness of the disclosure of the retention time to the fact that ‘a long, or even unlimited, duration means collecting a large amount of information on users’ surfing behaviour and how often they may visit the websites of the organiser of the promotional lottery’s advertising partners’ (paragraph 78).
It is irrelevant if the data accessed by cookies is personal or anonymous, ePrivacy provisions apply regardless
The Court was specifically asked to clarify whether the cookie consent rules in the ePrivacy Directive apply differently depending on the nature of the data being accessed. In other words, does it matter that the data being accessed by cookie is personal or anonymized/aggregated/de-identified?
First of all, the Court points out that in the case at hand, ‘the storage of cookies … amounts to a processing of personal data’ (paragraph 67). That being said, the Court nonetheless notes that the provision analyzed merely refers to ‘information’ and does so ‘without characterizing that information or specifying that it must be personal data’ (paragraph 68).
The Court explained that this general framing of the provision ‘aims to protect the user from interference with his or her private sphere, regardless of whether or not that interference involves personal data’ (paragraph 69). This finding is particularly relevant for the current legislative debate over the revamp of the ePrivacy Directive. It is clear that the core difference between the GDPR framework and the ePrivacy regime is what they protect: the GDPR is concerned with ensuring the protection of personal data and fair data processing whenever personal data is being collected and used, while the ePrivacy framework is concerned with shielding the private sphere of an individual from any unwanted interference. That private sphere/private center of interest may include personal data or not.
The Court further refers to recital 24 of the ePrivacy Directive, which mentions that “any information stored in the terminal equipment of users of electronic communications networks are part of the private sphere of the users requiring protection under the European Convention for the Protection of Human Rights and Fundamental Freedoms. That protection applies to any information stored in such terminal equipment, regardless of whether or not it is personal data, and is intended, in particular, as is clear from that recital, to protect users from the risk that hidden identifiers and other similar devices enter those users’ terminal equipment without their knowledge” (paragraph 70).
The judgment of the CJEU in Planet49 provides some much needed certainty about how the ‘cookie banner’ and ‘cookie consent’ provisions in the ePrivacy Directive should be applied, after years of disparate approaches from national transposition laws and supervisory authorities which lead to a lack of effectiveness in enforcement and, hence, compliance. The judgment does leave open on ardent question: what does ‘freely given consent’ mean? It is important to note nonetheless that before reaching the ‘freely given’ question, any consent obtained for placing cookies (or similar technologies) on user devices will have to meet all of the other three conditions. If only one of them is not met, then that consent is invalid.