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CNIL Updated Cookie Guidelines
Published on October 13, 2020 AUTHOR PRIVACY RESEARCH TEAM
On 1 October 2020, the Commission nationale de l'informatique et des libertés, the French Data Protection Authority (CNIL) published its amended guidelines on consent in relation to cookies and other guidelines along with its practical recommendations and the frequently asked questions (FAQs) for a better understanding of Guidelines and Recommendations.
Some of the key takeaways of the Guidelines and CNIL’s Recommendations are as follows:
A clear positive act to indicate consent:
The CNIL has clarified that the user must consent to the processing of cookies and other tracking technologies only by a clear positive act. Any action or inaction by users other than a positive act such as simple navigation or browsing on the website does not constitute a valid user’s consent.
Ability to withdraw and refuse consent:
All users must be informed of their ability to withdraw and refuse consent at the time of obtaining their consent, in a simple and intelligible manner. The user interface, therefore, must include a “refuse all” button since refusing consent must be as easy as giving consent. Moreover, users must be able to withdraw their consent at any time.
Informing users of purposes of consent:
Users must be able to make individual cookie selection based on their purposes. This obligation requires that users must be made aware of the purposes of individual cookies in an intelligible manner and appropriate language before they are offered the opportunity to consent or refuse consent. The CNIL recommends data controllers to prominently highlight the purposes of cookies and other trackers, accompanied by their brief descriptions.
Prior information to users:
Before obtaining the user’s consent, data controllers must provide information to users about the identity of the data controller, the purpose of data processing, the consequences of acceptance and rejection of consent, and the ability to withdraw consent.
Accept and Refuse buttons:
The CNIL recommends that the consent collection interface must include an “accept all” button as well as a “refuse all” button. Moreover, both the buttons must be designed in such a manner that they are of the same format, offer the same ease of reading to the users, and are highlighted identically.
Consent from each website concerned for the tracking:
When trackers allow tracking on websites other than the ones visited, consent should be collected on each of the websites concerned by this tracking.
Contractual clause for third-party cookies:
When a party does not collect consent by itself and enters into a contract with a third-party for the valid processing of cookies, such contract must be supported by a guarantee that the entity in charge of collecting the consent must also make available the proof of obtaining valid users’ consent.
No cookie walls:
The CNIL has not completely banned the use of cookie walls. It, however, notes that the use of cookie walls undermines an individual’s freedom of consent and therefore, the lawfulness of cookie walls must be assessed on a case-by-case basis.
Proof of consent:
Data controllers must be able to provide, at any time, the proof of valid collection of users’ consent. The CNIL recommends website publishers to retain consent as well as refusals for a certain period.
Exemptions from the collection of consent:
Data controllers must obtain valid consent of users before the processing of cookies and other tracking technologies. However, some trackers are exempt from the collection of consent under certain circumstances. These exemptions may apply to authentication cookies, audience measurement cookies, or those that limit the access to free content on a website requested by users.
Timeline for compliance:
The CNIL has provided a six-month window, i.e. until the end of March 2021 to organizations and website publishers to comply with the amended Guidelines and Recommendations. Data controllers are advised to bring their cookie consent practices and cookie consent banners in line with the CNIL’s requirements before the expiry of the six-month window.
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In order to protect the data of individuals in South Africa, Parliament assented to the Protection of Personal Information Act (POPIA) on 19th November 2013. The commencement date of section 1, Part A of Chapter 5, section 112 and section 113 was 11 April 2014. The commencement date of the remaining sections (excluding section 110 and 114(4)) was 1st July 2020. As per the Regulator’s Operational Readiness Plan the Regulator will be able to take enforcement actions for the violation of POPIA by July 1st 2021.
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The DIFC Data Protection Law, 2020 lays down regulations regarding the collection, disclosure and processing of personal data in the DIFC, a special economic zone in Dubai. It also gives rights to individuals whom the personal data relates to and provides power to the Commissioner of Data Protection to enforce the law, enact regulations and approve industry-wide Codes of Conduct.
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The Australia Privacy Act 1988 (Privacy Act) was enacted to protect the privacy of data subjects and regulate how Australian agencies and organizations with an annual turnover of more than $3 million handle their customers’ personal information.
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Singapore’s Personal Data Protection Act (PDPA) comprises various provisions governing the collection, disclosure, use, and care of personal data. It recognizes the rights of individuals to have more control over their personal data and the needs of organizations to collect, use, or disclose personal data for legitimate and reasonable purposes.
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On April 13, 2000, the Personal Information Protection and Electronic Documents Act (PIPEDA) received Royal Assent. It came into force in stages, beginning on January 1, 2001. PIPEDA came fully into effect on January 1, 2004. The legislation applies to organizations that collect, use or disclose personal information in the course of commercial activities.
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After the invalidation of Privacy Shield, many companies are relying on the SCCs in order to continue transferring data of EU citizens to companies based in countries who are not deemed adequate for data transfer.
After the CJEU judgement, it is clear that these companies have to conduct Risk Assessments with the data recipients in these countries in order to ensure they have enough controls to mitigate any potential data or regulatory risk.
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On 2nd March, 2019, the Department of Health—Abu Dhabi (DoH), launched the Abu Dhabi Healthcare Information and Cyber Security (ADHICS) Standard. This is the first standard that aims to provide healthcare professionals and entities a comprehensive guide to the regulation of healthcare data in Abu Dhabi. This law ensures the highest levels of privacy and security of patients’ data, in line with international standards, is maintained.
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On January 31, 2020, the government of Saudi Arabia issued the Executive Regulations to the Saudi E-Commerce Law 2019 (“ECL”) that was in effect since October 2019. The Executive Regulations together with the ECL (“Law”) aim to protect consumers’ personal data by requiring organizations to take appropriate technical and administrative measures.
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Turkey was one of the first countries to start the trend of legislating data protection. Turkey published “Law on the Protection of Personal Data No. 6698 (LPPD) covering personal data protection on April 07, 2016.” The LPPD is based on the European Union Data Protection Directive 95/46/EC and has several similarities with the GDPR. It aims to give data subjects’ control over their personal data and outlines obligations that organizations and individuals dealing with personal data must comply with. The LPPD has also provided comprehensive guidelines for the transfer of personal data to the third parties.
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In December 2019, India, following several other countries' footsteps on the privacy laws' developments, introduced the Personal Data Protection Bill (PDPB) to regulate the processing, collection, and storage of personal data.
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On 13 October 2020, the National People's Congress of the Republic of China submitted the long awaited draft of the Personal Information Protection Law (Draft PIPL) to the Standing Committee meeting for preliminary review. This draft was officially released for the public consultation on 21 October, 2020. The consultation period will last until 19 November 2020.
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The Irish Data Protection Act, 2018 (Irish DPA) implements the General Data Protection Regulation (GDPR) and transposes the European Union Law Enforcement Directive in Ireland. Since it incorporates most of the provisions from the GDPR and the Law Enforcement Directive with limited additions and deletions as per the national law, it is considered to be the principal data protection legislation in Ireland.
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The Personal Data (Privacy) Ordinance (Cap. 486) as amended in 2012 (the “PDPO) is the primary legislation in Hong Kong which was enacted to protect the privacy of individuals’ personal data, and regulate the collection, holding, processing, disclosure, or use of personal data by the organizations.. The Data Protection Principles ( the “DPPs or DPP ''), which are contained in Schedule 1 to the PDPO, outline how entities should collect, handle, disclose, and use personal data.
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In 2012, the Philippines passed the comprehensive privacy law, Data Privacy Act 2012 Republic Act. No, 10173 (the "DPA"). The DPA recognizes the rights of individuals to have more control over their personal data while ensuring a free flow of information to promote innovation and growth.
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The United Arab Emirates (UAE) has a Federal Telecommunication Law ( Federal Law) which requires that a company must hold a license in order to provide public communications services and operate public telecommunication networks. Under this Federal Law, a Telecommunication Regulatory Authority (TRA) was established which regulates the telecommunication sector in the UAE.
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