Cookie Storage Demands Active Consent, EU Court Rules

(CN) — Internet users must actively consent to having a website store and access cookies on their devices, Europe’s highest court ruled Tuesday, saying it is not enough to present web surfers with a box that has already been checked.

Cookies, as defined in the ruling out of Luxembourg, are text files that a website provider stores on users computer so that said provider can track their visits and better target advertising as well as the user experience.

The German company Planet49 spurred the lawsuit at issue by presenting users who come to play its online promotional games with a pre-ticked checkbox that says they consent to the storage of cookies.

Siding with the German Federation of Consumer Organisations, the European court of Justice determined Tuesday such a box is an invalid way for websites to obtain cookie consent.

“Contrary to what Planet49 claims, the fact that a user selects the button to participate in the promotional lottery organized by that company cannot therefore be sufficient for it to be concluded that the user validly gave his or her consent to the storage of cookies,” the opinion states.

The judges also called it immaterial that the cookies at issue may not necessarily contain personal data.

Indeed EU law says “any information stored in the terminal equipment of users of electronic communications networks are part of the private sphere of the users requiring protection under the European Convention for the Protection of Human Rights and Fundamental Freedoms,” the ruling notes.

“That protection applies to any information stored in such terminal equipment, regardless of whether or not it is personal data, and is intended, in particular, as is clear from that recital, to protect users from the risk that hidden identifiers and other similar devices enter those users’ terminal equipment without their knowledge,” the opinion continues.

Details that websites must give users about cookies include the duration of the operation of cookies and whether third parties may have access to those cookies.

With the court’s input on this issue, the case now returns to Germany’s Federal Court of Justice, the Bundesgerichtshof.

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