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Advocate General Issues Opinion on Valid Cookie Consent


Background


On 21 March 2019, Advocate General Szpunar of the Court of Justice of the European Union (CJEU) issued his Opinion on the case regarding the internet participation based lottery put on by Planet49. According to the German Law and in light of the GDPR, the process of clicking one of two boxes on the lottery did not satisfy the requirements for consent of cookie collection as put forth by the German Civil Code. Since the German court was in doubt, they asked for a preliminary ruling at the CJEU. The Opinion issued by the Advocate General on how to obtain valid consent to the use of cookies is yet to be confirmed by the CJEU.


Opinion of Advocate General


To be valid, consent must be manifested by a clear affirmative act.

  • Pre-ticked check boxes are insufficient to establish that consent has been freely given.

  • In addition, consent must be separate, bundled consent would not be valid.

  • Clear and comprehensive information implies that the user is able to easily determine the consequences of any consent he might give. Information that is clearly comprehensible is not subject to ambiguity or interpretation.

  • Further, information must be sufficiently detailed so as to enable the user to comprehend how the cookies function.

  • Such information should include the duration of the cookies, whether third parties are given access to cookies, and, if so, the identity of such third parties.

What next?


Now that the Opinion has been issued, the CJEU’s Grand Chamber will issue a final judgment in the case of Planet49. The Advocate General’s Opinion is not binding, but it is highly influential in the CJEU.


To read the Advocate General’s full Opinion, click here.





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