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On 6 April, the Data Protection Commission of Ireland (DPC) released a substantive Guidance Note on cookies (Guidance) and provided organizations a grace period of six months to ensure compliance. After the end of the six-month window, which is 5 October 2020, the Irish DPC may act to enforce the Guidance and can hold organizations liable for failing to obtain valid consent before the processing of cookies.
This Guidance was issued based on the report released by the DPC on the findings of a “cookie sweep survey”. The survey was conducted on around 38 organizations operating within the territory of Ireland and around 35 of those companies were found to be significantly lacking in cookie compliance requirements. The DPC noticed the following non-compliance practices of organizations, among others:
Based on its identification of the above non-compliance areas, the Irish DPC released the comprehensive Guidance for organizations. The Guidance explains the purposes of cookies as well as it adheres to the requirements of the GDPR, e-Privacy Directive, and the Guidelines on Consent of the European Data Protection Board, released on 4 May 2020 that declared cookie walls invalid.
Read EDPB’s Updated Guidelines on Consent
The Guidance also complements the landmark decision by the Court of Justice of the European Union in the Planet49 case that declared the use of pre-checked boxes as an invalid mechanism of obtaining users’ consent.
Some of the key points of the DPC Guidance are set out below:
Data controllers must obtain valid consent of users before the processing of cookies except the processing of strictly necessary cookies and communication cookies, i.e. cookies that are processed for carrying out the transmission of a communication over a network. A user’s consent must be freely given, specific, informed, and unambiguous as per Article 4(11) of the GDPR.
Data controllers must allow individual cookie selection by purposes and the user’s consent must be specific to each purpose of the cookie.
Data controllers must allow users to withdraw their consent to the processing of cookies via a user-friendly and easy method.
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The duration of each cookie must be proportionate to its purposes.
Data controllers are not allowed to use pre-checked boxes for the processing of non-essential cookies.
Data controllers must reaffirm the user’s consent after every six months.
Data controllers must arrange controller-processor contracts when they use a third-party payment company to process payments for goods or services of the data controller. In such a case, the controller-processor contract must be in accordance with the requirements of Article 28(3) of the GDPR.
Data controllers must conduct data protection impact assessments for certain types of data processing such as processing that involves systematic monitoring or tracking of individuals’ locations.
The DPC acknowledges the use of Consent Management Platforms. Data controllers must maintain records of users’ consents as part of the processing activities as per the requirements of Article 30 of the GDPR.
This Guidance Note reminds data controllers that they need to comply with the requirements of the valid consent before the processing of cookies as per the GDPR and e-Privacy Directive. Data controllers must bring their cookie consent practices in line with the DPC’s Guidance Note before 6 October to avoid any penalties for non-compliance.
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