Malta: Cookies: ECJ Confirms Illegality Of Pre-Ticked Boxes

The European Court of Justice ('ECJ') has given its preliminary ruling following a request from the German Federal Court of Justice during a case between the Federation of Consumer Organisations ('the Federation') and Planet49 GMBH ('Planet49'), an online gaming company.

The issue concerned the consent of participants in a promotional lottery being organized by Planet49, to:

  • i)    have their personal data transferred to the Planet49's partners and sponsors;
  • ii)   the storage of their information and;
  • iii)  the access of information stored on the users' terminal equipment (be it laptop, desktop, mobile device etc.).

The facts of the case were as follows. In order to participate in the lottery, users were faced with a set of two checkboxes. The first one, without a preselected tick, was for the users to provide consent to receive promotional material from around 60 different companies. The second checkbox, which had a preselected tick, was for the users to agree to web analytics that would enable cookies on the user's device, allowing Planet49 to evaluate surfing and the user's behaviour habits on Planet49's website and the websites of its advertising partners. The text of the second checkbox also contained a hyperlink with additional information, including a notice that the user could revoke their consent at any time by sending such revocation to Planet49 in writing or via email.

The Federation brought an action, in the Regional Court, Frankfurt am Main of Germany, against Planet49 asking it to stop using the declarations of consent in its checkboxes, as it alleged that they did not satisfy the applicable legal requirements relevant to obtaining valid consent. This first German Court held that the pre-ticked checkbox was permissible, since it argued that the text was written clearly and users would realise that they could deselect the tick in the checkbox.

The Federation then appealed such decision, bringing the case before the German Federal Court of Justice, contesting the validity of consent obtained through such pre-ticked checkboxes. This second German Court then referred the matter to the ECJ. The ECJ took cognizance of the E-Privacy Directive (Directive 2002/58/EC) as well as the General Data Protection Regulation ('GDPR') and the requirements of obtaining valid consent as stated therein. The ECJ reached the conclusion that consent must necessarily be acquired before non-essential cookies are stored on a user's device. In essence, the ECJ held that consent can never be tacitly given or implied, which is what a pre-ticked checkbox essentially does.

In truth, such rule existed long before the GDPR was introduced in the last few years. However, the GDPR has made acquiring valid consent much more difficult and it is now clear that a pre-ticked checkbox cannot be considered to constitute valid consent. For consent to be considered valid, it must be freely given, specific, informed and unambiguous. The ECJ pointed out that a pre-ticked checkbox makes it impossible to determine whether such consent was in fact freely given or even informed since it is very possible that a user would not even notice the checkbox, let alone the tick, before carrying on with their activity on the website.

The ECJ went on to say that the user must be given clear and comprehensive informationon the duration of cookies on their device, that is, for how long the cookies will remain downloaded. In addition, users must also be informed whether third parties will have access to such cookies or not.

Additional Mamo TCV Commentary

The information that, in the opinion of the ECJ, is required (see above) would best be provided in the form of a short notice or Cookie Policy, containing a table of all the cookies present on the website, which would be available at all times on the relevant website.

In the context of cookies, a distinction should however be made between essential and non-essential cookies. The former are cookies which are necessary for a website to actually function, and in this case no consent is generally required (though users should still be given the option to disable them if they so wish, at their own risk of the website not functioning properly for them). On the other hand, non-essential cookies are those which are not required for a website to function. These non-essential cookies notably include analytics cookies and marketing cookies which track user behaviour and clicking patterns to better customize personalized advertisements which would then target that specific user. The placement of non-essential cookies requires the consent of the user.

While this matter has been referred back to the national German Court, and has yet to be finalized, it can be expected that fines will be meted out if any breaches of applicable law are ultimately found. While this ECJ ruling already enforces the current legislation, the EU stance on cookies as a whole will be further reinforced with the advent of the upcoming e-Privacy Regulation.

Although progress on the proposed e-Privacy Regulation has been very slow and its coming into force is likely still a long way off, its eventual arrival will be to cookies what GDPR was to data protection more generally. Thus, it can be expected that the e-Privacy Regulation will harmonise EU law on cookies (and other matters such as direct marketing rules), including the fines for breaching such specific laws, while also increasing enforcement on cookie compliance.

Therefore, it is advisable to become cookie-compliant sooner rather than later.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions