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Irish Guidance on Consent & Cookies – Grace Period ends on 5 October

Published on October 1, 2020
irish consent

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:

  • Dropping of non-essential cookies on landing pages without obtaining user’s consent,
  • The lifespans of most cookies that are dropped are not proportionate to the purposes of the cookies,
  • Inadequate cookie banners,
  • Frequent use of pre-checked boxes for the processing of non-essential cookies,
  • A lack of stand-alone cookie policies,
  • Failure to fulfill the requirements of a valid consent as per the General Data Protection Regulation (GDPR) and the Irish e-Privacy Regulations.

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.

Key Points:

Some of the key points of the DPC Guidance are set out below:

Valid consent

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.

Multiple purposes

Data controllers must allow individual cookie selection by purposes and the user’s consent must be specific to each purpose of the cookie.

Easy withdrawal of consent

Data controllers must allow users to withdraw their consent to the processing of cookies via a user-friendly and easy method.

Compliant cookie banner

In order to ensure that the cookie banner complies with the applicable legal requirements, data controllers must give equal prominence to “accept” and “reject” buttons on the cookie consent banner. Moreover, the cookie banner must contain a link to the privacy policy and cookie policy providing detailed and further information. The use of wordings such as “by your continued use of the website – either through clicking, using, or scrolling it – consent to the processing of cookies will be assumed” is not allowed.

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Cookie lifespans

The duration of each cookie must be proportionate to its purposes.

Transparency requirement

Data controllers must provide clear and comprehensive information to users about the use of cookies before the processing of cookies and ensure compliance with the transparency obligations of the GDPR.

No pre-checked boxes

Data controllers are not allowed to use pre-checked boxes for the processing of non-essential cookies.

Refresh consent

Data controllers must reaffirm the user’s consent after every six months.

Controller-processor contracts

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.

Mandatory data protection impact assessments

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.

Consent Management Platforms

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.

How Securiti can help?

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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