Cookie walls dont comply with GDPR, says Dutch DPA TechCrunch

Basic information
Date of placement
67
0
0

Cookie walls dont comply with GDPR, says Dutch DPA TechCrunch Cookie walls that demand a website visitor agrees to their internet browsing being tracked for ad-targeting as the price of entry to the

AmsterdamNews.net

Cookie walls that demand a website visitor agrees to their internet browsing being tracked for ad-targeting as the “price” of entry to the site are not compliant with European data protection law, the Dutch data protection agency clarified yesterday.

The DPA said it has received dozens of complaints from internet users who had had their access to websites blocked after refusing to accept tracking cookies — so it has taken the step of publishing clear guidance on the issue.

It also says it will be stepping up monitoring, adding that it has written to the most-complained-about organizations (without naming any names) — instructing them to make changes to ensure they come into compliance with GDPR.

Europe’s General Data Protection Regulation, which came into force last May, tightens the rules around consent as a legal basis for processing personal data — requiring it to be specific, informed and freely given in order for it to be valid under the law.

Of course consent is not the only legal basis for processing personal data, but many websites do rely on asking internet visitors for consent to ad cookies as they arrive.

And the Dutch DPA’s guidance makes it clear internet visitors must be asked for permission in advance for any tracking software to be placed — such as third-party tracking cookies; tracking pixels; and browser fingerprinting tech — and that that permission must be freely obtained. Ergo, a free choice must be offered.

So, in other words, a “data for access” cookie wall isn’t going to cut it. (Or, as the DPA puts it: “Permission is not ‘free’ if someone has no real or free choice. Or if the person cannot refuse giving permission without adverse consequences.”)

“This is not for nothing; website visitors must be able to trust that their personal data are properly protected,” it further writes in a clarification published on its website [translated via Google Translate].

“There is no objection to software for the proper functioning of the website and the general analysis of the visit on that site. More thorough monitoring and analysis of the behavior of website visitors and the sharing of this information with other parties is only allowed with permission. That permission must be completely free,” it adds.

We reached out to the DPA with questions. A spokesperson told us it can’t comment on any individual complaints, but added: “Cookie walls are non-compliant with the principles of consent of the GDPR. Which means that any party with a cookie wall on their website has to be compliant ASAP, whether or not we will check that in a couple of months, which we certainly will do.”

In light of this ruling clarification, the cookie wall on the Internet Advertising Bureau (IAB)’s European site (screengrabbed below) looks like a textbook example of what not to do — given the online ad industry association is bundling multiple cookie uses (site-functional cookies; site-analytical cookies; and third-party advertising cookies) under a single “I AGREE” option.

It does not offer visitors any opt-outs at all. (Not even under the “MORE INFO” or privacy policy options pictured below.)

If the user does not click “I I AGREE” they cannot gain access to the IAB’s website. So there’s no free choice here. It’s agree or leave.

Clicking “MORE INFO” brings up additional information about the purposes the IAB uses cookies for — where it states it is not using collected information to create “visitor profiles.”

However, it notes it is using Google products, and explains that some of these use cookies that may collect visitors’ information for advertising — thereby bundling ad tracking into the provision of its website “service.”

Again the only “choice” offered to site visitors is “I AGREE” or leave without gaining access to the website. Which means it’s not a free choice.

The IAB told us no data protection agencies had been in touch regarding its cookie wall.

Asked whether it intends to amend the cookie wall in light of the Dutch DPA’s guidance, a spokeswoman said she wasn’t sure what the team planned to do yet — but she claimed GDPR does not “outright prohibit making access to a service conditional upon consent”; pointing also to the (2002) ePrivacy Directive which she claimed applies here, saying it “also includes recital language to the effect of saying that website content can be made conditional upon the well-informed acceptance of cookies.”

“We’re not going to change our implementation of our cookie banner on this point because the law does not require us to allow people to access our website without consenting to the use of cookies,” Matthias Matthiesen, the IAB’s director for privacy and public policy, told us in a follow-up call.

The IAB’s position appears to be that the ePrivacy Directive trumps GDPR on this issue.

Though it’s not clear how they’ve arrived at that conclusion. (The more than 15-year-old ePrivacy Directive is also in the process of being updated — while the flagship GDPR only came into force last year.)

On this Matthiesen cited a “general principle of law” that he said means that “in a conflict between two rules that cover the same thing it’s the more specific law prevails.” (Though that does assume the GDPR and ePrivacy Directive are in conflict where cookie walls are concerned.)

The portion of the ePrivacy Directive that the IAB appears to be referring to is recital 25 — which includes the following line:

Access to specific website content may still be made conditional on the well-informed acceptance of a cookie or similar device, if it is used for a legitimate purpose.

However, “specific website content” is hardly the same as full site access, i.e. as is entirely blocked by their cookie wall.

The “legitimate purpose” point in the recital also provides a second caveat vis-à-vis making access conditional on accepting cookies — and the recital text includes an example of “facilita[ting] the provision of information society services” as such a legitimate purpose.

What are “information society services”? An earlier European directive defines this legal term as services that are “provided at a distance, electronically and at the individual request of a recipient” [emphasis ours] — suggesting it refers to Internet content that the user actually intends to access (i.e. the website itself), rather than ads that track them behind the scenes as they surf.

So, in other words, even per the outdated ePrivacy Directive, a site might be able to require consent for functional cookies from a user to access a portion of the site.

But that’s not the same as saying you can gate off an entire website unless the visitor agrees to their browsing being pervasively tracked by advertisers.

That’s not the kind of “service” website visitors are looking for. 

Add to that, returning to present day Europe, the Dutch DPA has put out very clear guidance demolishing cookie walls.

The only sensible legal interpretation here is that the writing is on the wall for cookie walls.

The IAB’s Matthiesen disagrees, of course.

“Law’s complicated and [the definition of an information society service is] not as simple as that statement,” he said debating this point. “When a browser connects to a website it’s making technically a request on the things that are being loaded. So it is technically requesting the content that is loaded on the site.”

“The website is the property of the website owner. There are fundamental rights attached to property too,” he added. “There is nothing in the GDPR that says I must make my website’s content available to people. I am perfectly fine to determine the conditions under which I am making my property available.

“You’re not entitled to it. I can’t force you to accept tracking, right, maybe. The way in which you aren’t forced is that you don’t have to use my property. That is the fundamental disagreement between the position [that cookie walls can’t be used] and mine [i.e. that they can].”

He suggested it will be up to the European Court of Justice to provide legal clarity on the issue — assuming any Dutch websites targeted by the regulator to take down their cookie walls choose to bring a legal challenge.

This report was updated with comment from the DPA and the IAB.


(0)
0.0
Dislike 0
ОТН 0
Like 0

News list


15:50 Home prices in NL to increase 4% this year: ABN Amro
15:43 ‘Artefact detectives’ in Iraq aim to end the theft of their history
15:39 Archaeologists & filmmakers dig up the past of UAE’s Shamash temple
15:30 Moderation
15:05 [Ticker] Sweden halts Iran Air flights after crash
15:01 Middle East crisis: EU's delicate balancing act between Washington and Tehran
15:00 Dutch soldiers in Iraq safe, together, Defense Min. says
14:59 Outrage over reports EU-funding linked to forced labour in Eritrea
14:45 Meeting between the College of Commissioners and the Members of the Parliamentary Groups
14:33 [Ticker] Spanish court: EP must end Catalan MEP immunity
14:10 Boy, 10, randomly assaulted by woman on Haarlem street
14:01 Dutch cabinet now in favor of new fireworks limits and regulations
14:00 Girls more likely to be harassed, stalked online
13:51 2nd EU Clean Air Forum (Bratislava, 28-29 November 2019) - Part 2/3
13:49 [Ticker] Orban to offer free IVF in anti-immigrant move
13:27 Hate speech has 'no place' in Austria, says Kurz, after Bosnian-born minister receives abuse
13:20 Dutch car rolls in Belgium; deceased victims discovered hours later
13:00 Trump proposes 'NATOME': NATO expanded to MidEast
12:35 Lack of career prospects leaves care workers to quit, says report
12:35 Singer songwriter Jeangu Macrooy is Dutch Eurovision entry- AD
12:35 Defrosted kingfisher rejoins museum collection of dead animals
12:35 Saba again present at Holiday Fair - Saba News
12:35 Politicians should take responsibility for their own laws, says legal chief
12:35 ChristenUnie calls for firework clubs, backs ban on consumer sales
12:35 Good weather will bring clear views of partial lunar eclipse
12:35 'Explosive' growth in Amsterdam hotels despite stricter limits
12:35 More violent incidents at New Year, but fewer people are arrested
12:30 Number of hotels in Amsterdam region skyrocketing: report
12:05 [Ticker] Von der Leyen: 'Influential' EU means talk and trade
12:00 Pope Francis: "US-Iran tensions threaten rebuilding of Iraq"
11:40 More than 9,300 incidents over New Year's: police
11:30 Friends of plane crash victims mourn loss
11:21 EC Midday press briefing of 10/01/2020
11:20 2nd EU Clean Air Forum (Bratislava, 28-29 November 2019) - Part 1/3
11:18 Croatian Presidency of EU Council: press conference opening remarks by President von der Leyen
11:15 Croatian Presidency of EU Council: opening remarks by Croatian Prime Minister and President of EC
11:00 DUTCH RAILROAD CROSSING - Geldermalsen - Voetakkerweg
11:00 DUTCH RAILROAD CROSSING - Prinsenbeek - Spoorstraat
10:50 Girl, 10, dies after falling from asylum center's window
10:43 Compilatie 24H ‘Ontdek je stad’ 2019
10:32 Ontdek Amerfoort #Citytrip
10:26 UK accused of 'behaving like cowboys' over EU database copying
10:26 Men in west London have highest male life expectancy in EU - Life expectancy
10:24 Ursula Von Der Leyen and Croatian PM Andrej Plenkovic talk to the press | LIVE
10:00 Car with possible explosives found in Gelderland town; link with ATM bombing investigated
09:40 Viktor Orbán threatens new Europe grouping to rival 'weaker' EPP
09:39 Stockpiling for the New Year
09:37 European ministers meet to salvage Iran nuclear deal
09:35 President von der Leyen meets with Andrej Plenkovic, Croatian Prime Minister
09:30 Dutch Listening Practice - Talking About a School Trip in the Netherlands
09:28 [Ticker] Johnson suggests Iran crash was 'unintentional' missile
09:22 In Myanmar Armys Corner, Aung San Suu Kyi Will Defend It in Rohingya Genocide Case
09:16 Trudeau: Canadians deserve answers on plane crash
09:10 Man, 68, arrested for taping jerry can to Leeuwarden train
09:09 Iran denies that it brought down Ukrainian plane with a missile
08:49 Ask Our Astronaut | What's next in space exploration?
08:18 8 teams who saw their seasons ruined by international breaks
08:17 Judiciary Council calls politicians to stop blaming judges for unpleasant rulings
07:45 Iranian missile caused crash of Ukrainian Boeing 737: Officials
07:39 House of Commons passes Brexit bill for UK departure from EU on January 31
07:37 Gay, bisexual young people over twice as likely to be harassed, stalked online
07:01 Canadian PM called PM Rutte about MH17 after Tehran plane crash
06:37 Only let specialized clubs light fireworks, coalition party says
06:27 [Ticker] Swiss afraid of EU wage dumping
06:25 [Ticker] Orban to start new EU movement if kicked out of EPP
06:24 [Ticker] EU blasts Israeli settlements on 'occupied' land
06:15 Croatian PM Optimistic About EU Talks For North Macedonia, Albania
06:10 ABN Amro names PwC's former Dutch chairman as new CEO
06:07 South Mississippi Strong- Mag Holland is an angel devoted to helping others
06:04 MEPs slam UK for violating EU police database
06:03 EU regions: don’t touch cohesion funds for Green Deal
06:02 [Opinion] Europe, Scotland and Brexit - what next?
06:02 [Ticker] Brexit back on EU presidency agenda next week
06:01 [Ticker] President of European Court of Justice lambasts Poland
06:01 [Ticker] Athens asks for US help in east Mediterranean
06:01 [Ticker] Ukraine investigators want to search Iran plane crash site
04:32 How polluted is the air where you live?
04:14 Poisonous caterpillar to strike earlier than usual this year

11:18 Croatian Presidency of EU Council: press conference opening remarks by President von der Leyen
10:50 Girl, 10, dies after falling from asylum center's window
10:43 Compilatie 24H ‘Ontdek je stad’ 2019
09:35 President von der Leyen meets with Andrej Plenkovic, Croatian Prime Minister
09:28 [Ticker] Johnson suggests Iran crash was 'unintentional' missile
07:45 Iranian missile caused crash of Ukrainian Boeing 737: Officials
07:37 Gay, bisexual young people over twice as likely to be harassed, stalked online
06:24 [Ticker] EU blasts Israeli settlements on 'occupied' land
04:14 Poisonous caterpillar to strike earlier than usual this year
14:10 Boy, 10, randomly assaulted by woman on Haarlem street
13:51 2nd EU Clean Air Forum (Bratislava, 28-29 November 2019) - Part 2/3
13:20 Dutch car rolls in Belgium; deceased victims discovered hours later
11:40 More than 9,300 incidents over New Year's: police
11:20 2nd EU Clean Air Forum (Bratislava, 28-29 November 2019) - Part 1/3
10:32 Ontdek Amerfoort #Citytrip
09:40 Viktor Orbán threatens new Europe grouping to rival 'weaker' EPP
09:16 Trudeau: Canadians deserve answers on plane crash
09:10 Man, 68, arrested for taping jerry can to Leeuwarden train
09:09 Iran denies that it brought down Ukrainian plane with a missile
07:01 Canadian PM called PM Rutte about MH17 after Tehran plane crash
06:37 Only let specialized clubs light fireworks, coalition party says
06:15 Croatian PM Optimistic About EU Talks For North Macedonia, Albania
06:01 [Ticker] President of European Court of Justice lambasts Poland
06:01 [Ticker] Ukraine investigators want to search Iran plane crash site
15:50 Home prices in NL to increase 4% this year: ABN Amro
15:43 ‘Artefact detectives’ in Iraq aim to end the theft of their history
15:39 Archaeologists & filmmakers dig up the past of UAE’s Shamash temple
15:30 Moderation
15:05 [Ticker] Sweden halts Iran Air flights after crash
15:01 Middle East crisis: EU's delicate balancing act between Washington and Tehran
15:00 Dutch soldiers in Iraq safe, together, Defense Min. says
14:59 Outrage over reports EU-funding linked to forced labour in Eritrea
14:45 Meeting between the College of Commissioners and the Members of the Parliamentary Groups
14:33 [Ticker] Spanish court: EP must end Catalan MEP immunity
14:01 Dutch cabinet now in favor of new fireworks limits and regulations
14:00 Girls more likely to be harassed, stalked online
13:49 [Ticker] Orban to offer free IVF in anti-immigrant move
13:27 Hate speech has 'no place' in Austria, says Kurz, after Bosnian-born minister receives abuse
13:00 Trump proposes 'NATOME': NATO expanded to MidEast
12:35 Lack of career prospects leaves care workers to quit, says report
12:35 Singer songwriter Jeangu Macrooy is Dutch Eurovision entry- AD
12:35 Defrosted kingfisher rejoins museum collection of dead animals
12:35 Saba again present at Holiday Fair - Saba News
12:35 Politicians should take responsibility for their own laws, says legal chief
12:35 ChristenUnie calls for firework clubs, backs ban on consumer sales
12:35 Good weather will bring clear views of partial lunar eclipse
12:35 'Explosive' growth in Amsterdam hotels despite stricter limits
12:35 More violent incidents at New Year, but fewer people are arrested
12:30 Number of hotels in Amsterdam region skyrocketing: report
12:05 [Ticker] Von der Leyen: 'Influential' EU means talk and trade
12:00 Pope Francis: "US-Iran tensions threaten rebuilding of Iraq"
11:30 Friends of plane crash victims mourn loss
11:21 EC Midday press briefing of 10/01/2020
11:15 Croatian Presidency of EU Council: opening remarks by Croatian Prime Minister and President of EC
11:00 DUTCH RAILROAD CROSSING - Geldermalsen - Voetakkerweg
11:00 DUTCH RAILROAD CROSSING - Prinsenbeek - Spoorstraat
10:26 UK accused of 'behaving like cowboys' over EU database copying
10:26 Men in west London have highest male life expectancy in EU - Life expectancy
10:24 Ursula Von Der Leyen and Croatian PM Andrej Plenkovic talk to the press | LIVE
10:00 Car with possible explosives found in Gelderland town; link with ATM bombing investigated
09:39 Stockpiling for the New Year
09:37 European ministers meet to salvage Iran nuclear deal
09:30 Dutch Listening Practice - Talking About a School Trip in the Netherlands
09:22 In Myanmar Armys Corner, Aung San Suu Kyi Will Defend It in Rohingya Genocide Case
08:49 Ask Our Astronaut | What's next in space exploration?
08:18 8 teams who saw their seasons ruined by international breaks
08:17 Judiciary Council calls politicians to stop blaming judges for unpleasant rulings
07:39 House of Commons passes Brexit bill for UK departure from EU on January 31
06:27 [Ticker] Swiss afraid of EU wage dumping
06:25 [Ticker] Orban to start new EU movement if kicked out of EPP
06:10 ABN Amro names PwC's former Dutch chairman as new CEO
06:07 South Mississippi Strong- Mag Holland is an angel devoted to helping others
06:04 MEPs slam UK for violating EU police database
06:03 EU regions: don’t touch cohesion funds for Green Deal
06:02 [Opinion] Europe, Scotland and Brexit - what next?
06:02 [Ticker] Brexit back on EU presidency agenda next week
06:01 [Ticker] Athens asks for US help in east Mediterranean
04:32 How polluted is the air where you live?

15:50 Home prices in NL to increase 4% this year: ABN Amro
15:43 ‘Artefact detectives’ in Iraq aim to end the theft of their history
15:39 Archaeologists & filmmakers dig up the past of UAE’s Shamash temple
15:30 Moderation
15:05 [Ticker] Sweden halts Iran Air flights after crash
15:01 Middle East crisis: EU's delicate balancing act between Washington and Tehran
15:00 Dutch soldiers in Iraq safe, together, Defense Min. says
14:59 Outrage over reports EU-funding linked to forced labour in Eritrea
14:45 Meeting between the College of Commissioners and the Members of the Parliamentary Groups
14:33 [Ticker] Spanish court: EP must end Catalan MEP immunity
14:10 Boy, 10, randomly assaulted by woman on Haarlem street
14:01 Dutch cabinet now in favor of new fireworks limits and regulations
14:00 Girls more likely to be harassed, stalked online
13:51 2nd EU Clean Air Forum (Bratislava, 28-29 November 2019) - Part 2/3
13:49 [Ticker] Orban to offer free IVF in anti-immigrant move
13:27 Hate speech has 'no place' in Austria, says Kurz, after Bosnian-born minister receives abuse
13:20 Dutch car rolls in Belgium; deceased victims discovered hours later
13:00 Trump proposes 'NATOME': NATO expanded to MidEast
12:35 Lack of career prospects leaves care workers to quit, says report
12:35 Singer songwriter Jeangu Macrooy is Dutch Eurovision entry- AD
12:35 Defrosted kingfisher rejoins museum collection of dead animals
12:35 Saba again present at Holiday Fair - Saba News
12:35 Politicians should take responsibility for their own laws, says legal chief
12:35 ChristenUnie calls for firework clubs, backs ban on consumer sales
12:35 Good weather will bring clear views of partial lunar eclipse
12:35 'Explosive' growth in Amsterdam hotels despite stricter limits
12:35 More violent incidents at New Year, but fewer people are arrested
12:30 Number of hotels in Amsterdam region skyrocketing: report
12:05 [Ticker] Von der Leyen: 'Influential' EU means talk and trade
12:00 Pope Francis: "US-Iran tensions threaten rebuilding of Iraq"
11:40 More than 9,300 incidents over New Year's: police
11:30 Friends of plane crash victims mourn loss
11:21 EC Midday press briefing of 10/01/2020
11:20 2nd EU Clean Air Forum (Bratislava, 28-29 November 2019) - Part 1/3
11:18 Croatian Presidency of EU Council: press conference opening remarks by President von der Leyen
11:15 Croatian Presidency of EU Council: opening remarks by Croatian Prime Minister and President of EC
11:00 DUTCH RAILROAD CROSSING - Geldermalsen - Voetakkerweg
11:00 DUTCH RAILROAD CROSSING - Prinsenbeek - Spoorstraat
10:50 Girl, 10, dies after falling from asylum center's window
10:43 Compilatie 24H ‘Ontdek je stad’ 2019
10:32 Ontdek Amerfoort #Citytrip
10:26 UK accused of 'behaving like cowboys' over EU database copying
10:26 Men in west London have highest male life expectancy in EU - Life expectancy
10:24 Ursula Von Der Leyen and Croatian PM Andrej Plenkovic talk to the press | LIVE
10:00 Car with possible explosives found in Gelderland town; link with ATM bombing investigated
09:40 Viktor Orbán threatens new Europe grouping to rival 'weaker' EPP
09:39 Stockpiling for the New Year
09:37 European ministers meet to salvage Iran nuclear deal
09:35 President von der Leyen meets with Andrej Plenkovic, Croatian Prime Minister
09:30 Dutch Listening Practice - Talking About a School Trip in the Netherlands
09:28 [Ticker] Johnson suggests Iran crash was 'unintentional' missile
09:22 In Myanmar Armys Corner, Aung San Suu Kyi Will Defend It in Rohingya Genocide Case
09:16 Trudeau: Canadians deserve answers on plane crash
09:10 Man, 68, arrested for taping jerry can to Leeuwarden train
09:09 Iran denies that it brought down Ukrainian plane with a missile
08:49 Ask Our Astronaut | What's next in space exploration?
08:18 8 teams who saw their seasons ruined by international breaks
08:17 Judiciary Council calls politicians to stop blaming judges for unpleasant rulings
07:45 Iranian missile caused crash of Ukrainian Boeing 737: Officials
07:39 House of Commons passes Brexit bill for UK departure from EU on January 31
07:37 Gay, bisexual young people over twice as likely to be harassed, stalked online
07:01 Canadian PM called PM Rutte about MH17 after Tehran plane crash
06:37 Only let specialized clubs light fireworks, coalition party says
06:27 [Ticker] Swiss afraid of EU wage dumping
06:25 [Ticker] Orban to start new EU movement if kicked out of EPP
06:24 [Ticker] EU blasts Israeli settlements on 'occupied' land
06:15 Croatian PM Optimistic About EU Talks For North Macedonia, Albania
06:10 ABN Amro names PwC's former Dutch chairman as new CEO
06:07 South Mississippi Strong- Mag Holland is an angel devoted to helping others
06:04 MEPs slam UK for violating EU police database
06:03 EU regions: don’t touch cohesion funds for Green Deal
06:02 [Opinion] Europe, Scotland and Brexit - what next?
06:02 [Ticker] Brexit back on EU presidency agenda next week
06:01 [Ticker] President of European Court of Justice lambasts Poland
06:01 [Ticker] Athens asks for US help in east Mediterranean
06:01 [Ticker] Ukraine investigators want to search Iran plane crash site
04:32 How polluted is the air where you live?
04:14 Poisonous caterpillar to strike earlier than usual this year
I agree and close
x Cookies text