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ARTICLE · 14 OCTOBER 2019

Cookie Consent Clarity: ‘Active Consent' Is Required

Herbert Smith Freehills Kramer LLP
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The Court of Justice of the European Union has confirmed in the Planet49 case that a pre-ticked checkbox does not constitute valid consent for ePrivacy purposes.

United KingdomPrivacy
Miriam Everett
Miriam Everett
Jamie Ball
Jamie Ball

The Court of Justice of the European Union has confirmed in the Planet49 case that a pre-ticked checkbox does not constitute valid consent for ePrivacy purposes

This case provides clarity for EU website operators in the following ways:

  • Active user consent (as defined in the GDPR) is required for all non-essential website cookies, whether or not those cookies contain personal data.
  • The information given to a user about cookies (i.e. the cookie notice) must include the duration of the operation of cookies and whether or not third parties may have access to those cookies.

What the court said

Under the ePrivacy Directive (2002/58/EC), as amended by Directive 2009/136/EC, a user must give his or her consent before non-essential cookies can be used to store information on that user's device.

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