Article 29 Working Party Provides Guidance On 'Cookie Consent'

Author:Van Bael Bellis
Profession:Van Bael & Bellis
 
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On 2 October 2013, the Working Party (the "Working Party"), an independent European advisory body on data protection and privacy comprised of a representative of the national data protection authorities of the EU Member States, adopted an opinion providing guidance on obtaining consent for the use of cookies (the "Opinion").

A cookie is considered as any information stored in the users' terminal device, for instance on a PC or mobile device. Such information is used for various purposes (from enhanced functionalities to analytics, targeted advertising and product optimisation).

In a previous opinion (WP 194 of 7 June 2012), the Working Party distinguished between types of cookies and analysed whether consent was always required (See, VBB on Belgian Business Law, Volume 2012, No. 6, p. 6-7, available at www.vbb.com). Despite the fact that Article 5.3 of Directive 2002/58/EC (the "ePrivacy Directive"), allows for certain exemptions, the Working Party is of the opinion that users should, as a general rule, always have the opportunity to consent to having a cookie stored on their terminal equipment.

Based on the provisions of the ePrivacy Directive, the Opinion now elaborates on the conditions that a website operator should meet in order to ensure clear and unambiguous consent from users for the use of cookies.

According to the Opinion, cookie consent should include each of the following elements:

Specific information

When accessing the website, users must be able to obtain all necessary information about the different types or purposes of cookies being used by the website. As such, the website should provide for a clear, comprehensive and visible notice on the use of cookies, at the time and place where consent is sought. Alternatively, the website could also display a link to a designated location where all the types of cookies used by the website are presented.

Necessary information includes the purpose(s) of the cookies, whether third parties will place cookies on the users' device or whether third party can access data collected by the cookies on the website. In addition, the information such as the retention period, typical values, and, if relevant, details of third-party cookies and other technical information are required to inform the users fully.

Timing

Users should give their consent before the data processing starts. Therefore, consent should be sought before cookies are set or read. As a result, a website should deliver a consent solution in which...

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