GDPR and cookies – we finally know what to do

In the nick of time, the Office for Personal Data Protection issued a draft recommendation on the use of cookies. While this long-awaited opinion of the Office does respond to an increasing number of queries, it also raises certain doubts. What specifically does it say?

According to the draft recommendation, cookies should only be used for personalising advertisements with consent of the data subject. However, the consent need not be expressed on each page of the visited website separately, but rather each user has the option to grant the consent in general by setting her/his own browser, where third-party cookies can be blocked.

Nonetheless, the data subjects must continue to be informed of the purpose and manner of personal data processing, who will process them and to whom the data will be disclosed. The Office notes that this need not be done through the currently common pop-up banner, which is unreasonably bothersome for the user. The Office recommends that a document denoted as “Cookies” be placed in the footer of the website.

It remains a question how this recommendation regarding consent will stand up to the principle enshrined in the GDPR that consent should always be expressed actively. If the recommendation was to conform to that principle, it would be necessary for every browser to have cookies disabled in the basic settings and each user would have to enable the cookies her/himself.

Despite this contradiction, the Office’s opinion can be considered a reasonable approach in a situation where everyone is awaiting the adoption of a new ePrivacy regulation, which should clarify the entire topic – as a matter of fact, this Office indirectly admits this in the conclusion. This opinion is therefore good news for all users of websites using cookies, e.g. for advertising. Simultaneously, in the nick of time, the Office thus (for the time being) avoided a situation which tends to be called the end of on-line advertising as we know it today.


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