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.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Kristof Van Quathem Kristof Van Quathem

Kristof Van Quathem advises clients on information technology matters and policy, with a focus on data protection, cybercrime and various EU data-related initiatives, such as the Data Act, the AI Act and EHDS.

Kristof has been specializing in this area for over twenty…

Kristof Van Quathem advises clients on information technology matters and policy, with a focus on data protection, cybercrime and various EU data-related initiatives, such as the Data Act, the AI Act and EHDS.

Kristof has been specializing in this area for over twenty years and developed particular experience in the life science and information technology sectors. He counsels clients on government affairs strategies concerning EU lawmaking and their compliance with applicable regulatory frameworks, and has represented clients in non-contentious and contentious matters before data protection authorities, national courts and the Court of the Justice of the EU.

Kristof is admitted to practice in Belgium.

Photo of Dan Cooper Dan Cooper

Daniel Cooper is co-chair of Covington’s Data Privacy and Cyber Security Practice, and advises clients on information technology regulatory and policy issues, particularly data protection, consumer protection, AI, and data security matters. He has over 20 years of experience in the field, representing…

Daniel Cooper is co-chair of Covington’s Data Privacy and Cyber Security Practice, and advises clients on information technology regulatory and policy issues, particularly data protection, consumer protection, AI, and data security matters. He has over 20 years of experience in the field, representing clients in regulatory proceedings before privacy authorities in Europe and counseling them on their global compliance and government affairs strategies. Dan regularly lectures on the topic, and was instrumental in drafting the privacy standards applied in professional sport.

According to Chambers UK, his “level of expertise is second to none, but it’s also equally paired with a keen understanding of our business and direction.” It was noted that “he is very good at calibrating and helping to gauge risk.”

Dan is qualified to practice law in the United States, the United Kingdom, Ireland and Belgium. He has also been appointed to the advisory and expert boards of privacy NGOs and agencies, such as Privacy International and the European security agency, ENISA.

Photo of Anna Oberschelp de Meneses Anna Oberschelp de Meneses

Anna Sophia Oberschelp de Meneses is an associate in the Data Privacy and Cybersecurity Practice Group.  Anna is a qualified Portuguese lawyer, but is both a native Portuguese and German speaker.  Anna advises companies on European data protection law and helps clients coordinate…

Anna Sophia Oberschelp de Meneses is an associate in the Data Privacy and Cybersecurity Practice Group.  Anna is a qualified Portuguese lawyer, but is both a native Portuguese and German speaker.  Anna advises companies on European data protection law and helps clients coordinate international data protection law projects.  She has obtained a certificate for “corporate data protection officer” by the German Association for Data Protection and Data Security (“Gesellschaft für Datenschutz und Datensicherheit e.V.”). She is also Certified Information Privacy Professional Europe (CIPPE/EU) by the International Association of Privacy Professionals (IAPP).  Anna also advises companies in the field of EU consumer law and has been closely tracking the developments in this area.  Her extensive language skills allow her to monitor developments and help clients tackle EU Data Privacy, Cybersecurity and Consumer Law issues in various EU and ROW jurisdictions.