On 28 March 2023, the European Commissioner Didier Reynders announced the launch of the Cookie Pledge to encourage solutions from companies to address cookie fatigue and empower consumers to make effective choices regarding tracking-based advertising models.

This has opened the floor to the discussion of potential avenues through which pop-ups on websites can be reformed. For example, Reynders suggested the possibility of introducing a platform where data subjects can register their "digital ID" to establish a blanket level of personal data that they consent to share, and then such preferences can be distributed amongst multiple websites to adhere to.

Implementation of the "Cookie Pledge"

The list of companies who have agreed to take part so far include Amazon, Apple, Google, Samsung and Tik-Tok. The Commissioner aims to finalise the content of the pledge by the end of 2023 and has estimated that the respective companies shall reach an agreement on the scope of their pledge by the end of the current mandate in 2024. There are also discussions that, provided the pledge improves the digital experience and privacy options for users, this strategy could materialise into a mandatory legislative proposal with talk of a potential "Digital Fairness Act" already on the horizon.

Following the first roundtable discussion on 28 April 2023, the Commission has proposed to create three working groups to draft principles to which businesses could pledge to implement: "(1) presentation of information on business models and their consequences in terms of privacy and consent to consumers; (2) alternatives to tracking based advertising; (3) technical solutions for automated management of consumer choices."

Considering many businesses, such as publishers in particular, rely on tracking-based advertising for their business model, these conversations (taking place in June and September 2023) will act as important developments as to how they may need to adapt their user consent gathering practices on their websites and are thus, encouraged to participate in these discussions.

Cookie Fatigue

Privacy advocates have shared concern that, whilst cookie banners act as an important vehicle to obtain user consent, their overwhelming presence has in fact led to threaten the sanctity of European citizens' data protection rights and can also be linked to potential risks to security, democracy and the environment.

Many digital users across Europe experience cookie banners that are presented in an overwhelming manner that does not allow them to fully understand the implication of their privacy choices and often abandon the selection of their real privacy preferences in a desperate attempt to dismiss relentless pop-up banners. It has become clear that the magnitude of cookie fatigue complaints against the overarching importance of privacy protection warrants a level of coordination effort from actors across the digital ecosystem.

In the UK

The UK GDPR and Privacy and Electronic Communications Regulations ("PECR") provides a similar framework for the obtention of consent, which means that UK users likely experience a similar case of cookie fatigue from a comparably repetitive pop-up regime.

The incoming UK Data Protection and Digital Information Bill similarly includes a relaxation of the requirements in relation to the use of cookies for "low risk purposes" without consent, but consent is still required for the use of more intrusive cookies. However, UK companies collecting data from individuals located in the EU would also need to comply with EU cookie requirements.

Find a copy of the Cookie Pledge here.

The material in this article is only for general review of the topics covered and does not constitute legal advice. No legal or business decision should be based on its content.

This article is written in English language. Preiskel & Co LLP is not responsible for any translation of all or part of its content into any language.

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.