The Working Paper indicates that necessary information includes:
- identification of all of the types of cookies used;
- the purpose(s) of the cookies;
- if relevant, an indication of possible cookies from third parties;
- if relevant, third party access to data collected by the cookies;
- the data retention period (i.e. the cookie expiry date); and
- typical values and other technical information.
Users must also be informed about the ways that they can accept all, some or no cookies and how to change their cookie settings in the future.
Timing: Consent must be obtained before data processing begins, i.e. on the entry page. The Working Party recommends that websites implement a consent solution in which no cookies are set to a user’s device (other than those that fall under an exception and thus do not require the user’s consent) until that user has provided consent.
Active Behavior: The Working Party indicates that valid consent must be through a “positive action or other active behavior”, provided that the user has been fully informed that cookies will be set due to this action. Unfortunately, the passive use of a website containing a link to additional cookie information is not likely to be sufficient. Examples provided by the Working Party include (i) clicking on a button or link, (ii) ticking a box in or close to the space where information is presented or (iii) any other active behavior from which a website can unambiguously conclude that the user intends specific and informed consent. The Working Party also confirmed their previously issued view that browser settings may be able to deliver valid and effective consent in certain limited circumstances. Where the website operator is confident that the user has been fully informed and has actively configured their browser or other application to accept cookies, then such a configuration would signify an active behavior.
Real Choice: The Working Document provides that websites should present users with real and meaningful choice regarding cookies on the entry page. This choice should allow users to decline all or some cookies and to change cookie setting in the future. The Working Document also clarifies that websites should not make general access to the website conditional on the acceptance of all cookies, although it notes that access to “specific content” could in some circumstances be conditional.
Although the Working Document is a welcome source of guidance providing further clarification on this thorny issue, it is clear that compliance with the European Union’s rules governing cookie consent will continue to provide challenges to companies seeking to conform their websites accordingly.