On September 10, 2019, the Court of Justice of the European Union (“CJEU“) issued its decision in the Planet 49 case.  The case centers on the consent requirements for the use of cookies.

Planet49 GmbH offered an online lottery service for which interested users had to register.  The registration form asked users to tick a box allowing Planet49 GmbH to share their data with commercial partners.  Ticking this box was mandatory to participate in the lottery.  A second pre-ticked box allowed users to opt out from the use of cookies (by unticking the box).  If they chose to opt out, they could still participate in the lottery. Users were asked to click on the button “participate” in order to submit their registration form.

The CJEU decision focuses on the second pre-ticked box used to obtain consent for cookies and, in particular, on whether it met the requirements for unambiguous and specific consent.

The CJEU decided that consent obtained using a pre-ticked box is not valid because it does not meet the requirement for an affirmative consent imposed by the ePrivacy Directive, the Data Protection Directive and, now, the GDPR. According to the CJEU, the use of a pre-ticked box makes it “practically impossible to clarify in an objective manner whether the user of a website has actually given his consent to the processing of his personal data (…),” and “[i]t cannot be ruled out that the user may not have read the information attached to the checkbox or that he may not have noticed this box before continuing his activity on the website he visited” (Para. 55).

On the specificity of the consent, the CJEU decided that the consent could not be obtained by actively clicking on the “participate” button, since from that action one cannot “assume that the user has given his effective consent to the storage of cookies” (Para. 59).  This suggests that the CJEU would also consider implied consents (such as consents derived from a continued use of the service) to be unacceptable.

The CJEU expressly declined to decide on the “freely given” nature of the consent since this was not included in the questions submitted by the German Federal Court of Justice.

The CJEU was also asked to decide on whether the requirement to obtain consent for cookies applied only if these cookies were used to collect personal data.  In this regard, the CJEU clarified that the requirement under the ePrivacy Directive to obtain consent applies “to ‘the storage of information’ and ‘access to information already stored’ without specifying that information or specifying that it must be personal data”. However, the CJEU noted that in the case at hand, the collected data was personal data because the cookies stored in the terminal equipment of a user assigned a number to each user which was linked to the registration data.

Finally, the court decided that, as part of the “comprehensive information” that must be provided to users, such users must be informed of the duration of the cookies and about whether third parties can access them. The court did not say that all the third parties must be individually identified.