The debate around cookies and consent forms under GDPR has cranked up a notch with the latest ruling from the Court of Justice of the European Union. The court made a significant ruling on October 1 that pre-ticked forms for cookies on websites are incapable of legally gathering consent to track consumers.
The decision comes following a legal case against lottery site Planet 49, which requested players to consent to pre-ticked cookies to access its game. According to the ruling, the site’s pre-ticket cookie forms/boxes did not gather consent legally and instead, consumers should actively opt-in to have each company follow them online.
The case was brought up initially by the German Federation of Consumer Organisations before escalating it to the Court of Justice to interpret EU law. The case lasted more than a year with the final decision made on Tuesday. The full case can be read here.
According to the court, the user interface was at fault for not allowing clear access to analyse cookie partners whilst not informing users on third-party cookies they may have access. In addition, it was mentioned that consent was manufactured to provide access to a gambling game which raised legal concerns about how advertisers could manufacture consent in the future.
“The court decides that the consent which a website user must give to the storage of and access to cookies on his or her equipment is not validly constituted by way of a pre-checked checkbox which that user must deselect to refuse his or her consent,” the court said in its statement.
“That decision is unaffected by whether or not the information stored or accessed on the user’s equipment is personal data. EU law aims to protect the user from any interference with his or her private life, in particular, from the risk that hidden identifiers and other similar devices enter those users’ terminal equipment without their knowledge.”
With the topic of GDPR consent, cookies and transparency being on everyone’s radar following DMEXCO last month, this latest announcement is another warning to ad tech companies and media owners as they’re now more pressured than ever before to get the processes right before the impending deadline.