EDPB’s new guidelines on consent: focus on “cookie wall”

The European Data Protection Board has adopted its Guidelines 05/2020 on consent under Regulation 2016/679 that update the previous version adopted by Article 29 Working Party on 10 April 2018 the (WP259.01).

The main clarifications concern:

– the validity of consent provided by the data subject when interacting with so-called “cookie walls”;

– the scrolling mechanisms.

The rest of the document was left unchanged, except for editorial changes.

Therefore, the EDPB has focused on the validity of consent provided by the data subject when interacting with so-called “cookie walls”. The authority has clarified that a service provider cannot prevent data subjects from accessing a service on the basis that they do not consent. In tesi regard, it is now established that in order for consent to be freely given, access to services and functionalities must not be made conditional on the consent of a user to the storing of information, or gaining of access to information already stored, in the terminal equipment of a user (so called cookie walls). The EDPB also stressed that the GDPR conditions for obtaining valid consent are applicable in situations falling within the scope of the e-Privacy Directive. The Guidelines have given a new example to clarify what has been stated, concluding that in the case of the provision of a service that relies on the data subject clicking the “Accept cookies”, there is not a valid consent, not presenting with a genuine choice.

The other amendments have concerned the scrolling mechanisms. By mentioning recital 32, it was further clarified  that actions such as scrolling or swiping through a webpage or similar user activity will not under any circumstances satisfy the requirement of a clear and affirmative action: such actions may be difficult to distinguish from other activity or interaction by a user and therefore determining that an unambiguous consent has been obtained will also not be possible. The EDPB has also pointed out that in such a case, it will be difficult to provide a way for the user to withdraw consent in a manner that is as easy as granting it.