BLOG | Cookie Compliance | October 03, 2019

Top European Court Declares Active Cookie Consent Necessary

The Court of Justice of the European Union (CJEU) rules pre-checked consent boxes as well as cookie banners are not valid under EU law.

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This week, the Court of Justice of the European Union (CJEU) has ruled that pre-checked consent boxes in cookie banners are not considered legally valid. Users must now provide active cookie consent before third-party or behavioral cookies are stored.

This requires companies to make adjustments to their website’s cookie banner if it currently has a pre-checked ‘tick-box’ that makes users click it to opt out.

The ECJ provided further details on its ruling in a press release, which stated, “In today’s judgment, the Court decides that the consent which a website user must give to the storage of and access to cookies on his or her equipment is not validly constituted by way of a pre-checked checkbox which that user must deselect to refuse his or her consent.”

In its decision, the CJEU notes that consent must be specific, and that users should be informed how long cookies will be stored for and used, and whether or not third parties will have access to them.

“EU law aims to protect the user from any interference with his or her private life, in particular, from the risk that hidden identifiers and other similar devices enter those users’ terminal equipment without their knowledge,” said the CJEU.

This ruling will effect websites that have relied on opting EU users into ad-tracking cookies in the hopes they’ll just click okay to make the cookie banner go away.

The case that led to the ruling dates back to 2013, when a company called Planet49 had a promotional lottery in Germany that required users to consent to the storage of cookies before playing the game.

Overall, pre-checked consent boxes (or cookie banners that tell you a cookie has already been dropped and invite you to click ‘ok’) are not valid under EU law. 

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