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Cookie Consent in the European Legal Framework: GDPR and e-Privacy Directive
Published on March 4, 2021 AUTHOR Privacy Research Team
In today’s digital world, businesses collect a wealth of personal data, rely on it, and use it for assessing data subjects’ preferences, building their profiles and sending targeted advertisements, promotions, customized products and recommendations or suggestions that you see on your web browser. For this purpose, personal data is collected, shared, disclosed, and sold via cookies and other similar tracking technologies such as pixels, beacons, local storage, and more. Since cookies identify website users, build their profiles, and collect and sell their information to several other parties including ad-tech companies, there has been a growing concern for the user’s data privacy.
Cookies are small pieces of data that are stored on the user’s terminal equipment (Terminal equipment refers to computers, laptops, mobile phones and any other electronic device used to access the internet) every time they visit a website. Its primary purpose was to remember and recall stateful information and create a customized web page for each specific consumer. This was evolved when organizations started using cookies to analyze a consumer’s behavioural pattern and develop targeted marketing activities.
What are the two types of consent regimes?
When it comes to relying on a user’s consent as a lawful basis of data processing, global privacy regulations can be classified as either an opt-in or opt-out consent regime.
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Opt in consent
In an opt-in consent regime, user consent is required before the processing of personal data and users are explicitly asked to provide their consent and they are free to grant or deny consent. Some of the examples of opt-in consent regimes are European Union, Brazil, and New Zealand.
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Opt out consent
In an opt-out consent regime, the user’s consent is not required before the processing of personal data. However, organizations are still required to provide users an option to object to processing of their data and provide relevant information about the use of cookies. Some of the examples of opt-out cookie consent regimes are United States, Hong Kong, and Estonia.
Is European Union an opt-in consent regime?
The General Data Protection Regulation (GDPR) and e-Privacy Directive are two major laws that govern the use of cookies and other tracking technologies in the European Union (EU). The EU offers an opt-in consent regime.
The GDPR defines consent of the data subject as “any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data belonging to him or her”. Although the GDPR does not expressly mention cookies, it classifies cookies as a type of “online identifier” meaning that cookies may be considered personal data under certain circumstances. As a result, all GDPR principles pertaining to the processing of personal data will automatically apply to the use of cookies and other identification technologies.
The e-Privacy Directive further requires organizations making use of cookies to provide clear and precise information to users about the purposes of cookies and provide users an opportunity to refuse to have a cookie stored on their terminal equipment.
Read about the EDPB’s Updated Guidelines on Consent here.
How do organizations collect user consent?
Organizations subject to privacy regulations can use a cookie consent banner to collect user consent. They must ensure that the cookie consent banner include the following:
- Clear and comprehensive information about cookies:
The cookie consent banner must contain plain and understandable information about the cookies that an organization intends to use. The information must include at least, the information on general purposes of cookies, the user’s ability to withdraw and change consent along with the method of doing so, data controller’s name and identity, data processors’ names and identities, full list of recipients or categories of recipients who will obtain personal data through the processing of cookies, and information on individual cookie properties.
- User’ ability to withdraw and change the consent:
The cookie consent banner must give equal prominences to accept and reject options. The user must be allowed to withdraw consent or change consent at any time, without any detriment in a user-friendly mechanism.
- Selection and deselection of individual cookies:
The cookie consent banner must allow selection and deselection of individual cookies by purposes and must have separate opt-in and opt-outs for separate types of cookies.
- No pre-selected checkboxes or cookie walls:
The cookie consent banner must not have pre-selected preferences by default for non-essential cookies. Similarly, an organization must not make access to a service or functionality of a website conditional on the user’s consent to the processing of non-essential cookies.
These requirements help organizations ensure consent is freely given, specific, informed, and an unambiguous indication of users’ preferences.
Additionally, organizations must maintain up to date and comprehensive cookie consent records. These records must include information provided to users at the time of obtaining consent, information of the session in which consent was expressed, consent workflow at the time of the session including subject identity, cookie category, consent status, consent date, and information on first and third parties of cookies.
How Securiti can help?
Where organizations leverage consent as a legal basis of data processing, they must ensure that all elements of valid consent are fulfilled. Securiti’s PrivacyOps approach, based on automation, enables organizations to ensure adequate fulfillment of valid consent and effective cookie consent management in the following manner:
- Automatic scanning and cookie classification:
The first step of effective cookie consent management is automatic scanning of the website to determine what cookies and other tracking technologies a website utilizes on a data subject’s visit to the website. Automatic scanning leads to the classification of cookies and other tracking technologies as per their types and expiry periods and auto-blocking of non-essential cookies on landing pages that are not needed for the provision of the service, before the collection of data subject’s consent.
- Cookie consent banners:
After website scanning and cookie classification, the next step is to obtain the data subject’s consent of the use of cookies and other tracking technologies. This requires organizations to deploy cookie consent banners customized to geographical locations.
- Preference center and honoring consent revocations:
If users choose to revoke consent at any time, the preference center enables organizations to honor their request. With the assistance of the preference center builder, organizations could easily configure and deploy a page for users to update their preferences on the use of cookies and withdraw consent. It allows organizations to immediately and adequately honor consent revocations across multiple systems.
- Audit trail:
The audit trail enables organizations to maintain updated consent records of users’ consents as well as the types of cookies and tracking technologies they consented.
To learn more, sign up for a Demo and learn how we can help you comply with GDPR, e-privacy and other global regulation cookie consent requirements.
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While data aids in business decision making, global privacy regulations such as GDPR, CPRA require organization to identify personal & sensitive data & use only for its intended purpose and implement adequate protection.
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The California Consumer Privacy Act (CCPA) was signed into law on June 28, 2018 and is scheduled to come into effect on January 01, 2020. Often compared to GDPR, CCPA protects consumers from mismanagement of their personal data and gives the consumer control over what data is collected, processed, shared or sold.
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The EU General Data Protection Regulation (GDPR) came into effect on May 25, 2018 and changed the global privacy landscape. It has broadened the definition of processing activities and personal data, impacting companies worldwide, and has tightened the rules to obtain consent before processing information.
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The Lei Geral de Proteção de Dados (LGPD) is modeled with similarities to the General European Data Protection Regulation (GDPR) and contains sixty-five articles. It was approved on August 14, 2018 and its validity has undergone several changes, the last relevant fact being MPV 959. LGPD is in effect since September 18, 2020. The sanctions by the ANPD (Brazilian Data Protection Authority) were postponed to August 2021. The LGPD allows people have more rights over their data and expects organizations to comply with their regulations or face heavy penalties or fines.
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The government of New Zealand has recently replaced its long-existing Privacy Act of 1993 with a modernized version, the Privacy Act 2020. The New Zealand Privacy Act 2020 (NZPA) will take effect from December 1, 2020.
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The Personal Data Protection Act, B.E. 2562 (2019) ('PDPA') is Thailand's first consolidated data protection law, which was published in the Thai Government Gazette on 27 May 2019. This law was said to go into effect on 27 May 2020. However, in May 2020, the Thai Cabinet through a Royal Decree has deferred the enforcement of certain data protection provisions of the PDPA until 31 May 2021.
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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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