On June 19, 2020, the French Council of State (Conseil d’État) decided that the French Supervisory Authority (“CNIL”) had gone too far in its guidance on cookies and similar technologies when it stated that conditioning a user’s access to a website upon his or her acceptance of certain cookies (commonly known as “cookie walls”) is never compliant with the consent requirements in the EU General Data Protection Regulation (“GDPR”).

According to the Council of State, such a blanket prohibition cannot be deduced from the text of the GDPR. The Council of State reminded the CNIL that its guidance is only soft law and therefore must follow the text of the GDPR. The CNIL has announced that it will adapt its guidance in light of the Council of State’s decision. The decision serves as a stark reminder that even EDPB or CNIL guidance is can only interpret the text of the GDPR, and cannot break fresh legal ground.

In response to the Council of State’s decision, the CNIL noted that its guidance is aligned with the European Data Protection Board’s (“EDPB”) guidance on consent, issued on May 4, 2020. Unlike the CNIL guidance, however, the EDPB guidance on consent states that consent obtained through cookie walls may be valid where service providers offer users a choice between a service that involves the payment of a fee and the same service made contingent upon acceptance of cookies. In other words, cookie walls may be permitted provided that users can reject the cookies, opting to pay for the service instead. These services, in order to be equivalent, also need to be provided by the same service provider.

The CNIL is not the first EU Supervisory Authority to release guidance on cookies, and it has been a topic receiving significant attention. For instance:

  • the German Supervisory Authorities, in March 2019, released guidance stating that “data subjects should be able to visit a website even if they refused cookies and do not consent to personal data processing”;
  • the Spanish Supervisory Authority’s guidance on cookies and similar technologies, released in November 2019, states that cookie walls may be allowed in cases where users are informed that they will only be able to use the services if they consent to cookies and where the denial of service does not prevent a data subject from exercising his or her legal rights; and
  • the UK Information Commissioner’s Office’s guidance on cookies, which was last updated in July 2019, states the following: “where the use of a cookie wall is intended to require, or influence, users to agree to their personal data being used by [the service provider] or any third parties as a condition of accessing [the] service, then it is unlikely that user consent is considered valid”.

This topic, not surprisingly, is receiving attention in the context of discussions surrounding the draft ePrivacy Regulation, the latest version of which was released on March 6, 2020. According to that draft, website providers may not need user consent (and may refer to legitimate interests) where “website content or services are accessible without direct monetary payment and wholly or mainly financed by advertising, provided that these services safeguard the freedom of expression and information including for journalistic purposes”.

As with the doctrine of “legitimate interest” found in the GDPR, the proposal would allow a website provider to rely on its legitimate interests, provided that the rights and freedoms of data subjects do not override those legitimate interests. Negotiations surrounding the draft ePrivacy Directive have been suspended due to the COVID-19 outbreak, and will be relaunched by the German Presidency in June. We will continue to monitor the progress of the draft Regulation and shall post updates on any newsworthy developments.