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European Court Rules Against Pre-Checked Cookie Policy

Active Opt-Ins for Site Cookies must be Clear and Separate, clarifies Cookie Policy

In a somewhat strong ruling from the Court of Justice of the European Union, bundling in consent for cookies with offerings of other services, or presuming consent by an opt-out was ruled illegal. This will affect cookie policy.

The case originally related to a German registered company, Planet49, which hosted on its website a game which for users to enter meant accepting cookie consent as part of access. The user was asked to provide contact details, and two check boxes were presented. The one containing consent for cookies was pre-ticked by default.

This is judged to have been afoul of some parts of the ePrivacy Directive, GDPR and the Data Protection Directive.

So this clearly shows how strictly the laws are being enforced, and has some clarification for cookie policy.

The main interpretation of the law is around the concept of consent. Preselecting, or forcing cookies to enjoy other services may fall foul of the above directives.

In essence, the ruling clarifies that consent must be 1) Freely Given, 2) Informed, 3) Clearly Affirmed by the User, by Active Opt-In, not an assumed Opt-In, and 4) must be Separate to other agreements.

The ruling also brought more confirmation that clear information about the use of the data must be provided before cookies can be used.

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