On May 4, 2020, the European Data Protection Board (“EDPB”) updated its guidelines on consent under the GDPR.  An initial version of these guidelines was adopted by the Article 29 Working Party prior to the GDPR coming into effect, and was endorsed by the EDPB on May 25, 2018.

The revisions do not amount to an overhaul of the existing guidelines.  Rather, the EDPB aims to provide clarity in two specific areas:

  • Cookie walls. The EDPB explicitly states that if websites or services require users to accept the use of cookies and similar technologies as a pre-condition of access (i.e., using a so-called “cookie wall”), that does not constitute valid consent under Article 5(3) of the e-Privacy Directive.  This is largely consistent with national regulators’ cookie guidance (see e.g., our blog posts on the Dutch and Austrian supervisory authorities’ guidance on this point here and here), but it appears to limit any scope to use “partial cookie walls” in some circumstances, which the UK ICO had suggested might be possible (see our post here).
  • Action used to indicate consent. Scrolling or swiping through a webpage “will not under any circumstances satisfy the requirement of a clear and affirmative action” indicating consent.  While the EDPB acknowledges that different user interfaces mean that different actions (e.g., swiping a bar on a screen or waving in front of a smart camera) can be used to indicate that a user gives their consent, they emphasize that:
    • the action that grants consent must be distinguishable from other actions;
    • it must be clear to data subjects what action constitutes consent; and
    • data subjects must be able to withdraw their consent just as easily as they can give it.

While this is a strict interpretation, it provides welcome clarity after some supervisory authorities — notably the Spanish supervisory authority (see our blog post here) — had indicated that continued browsing of a site could constitute valid consent for the use of cookies in some circumstances

With little sign of agreement at European level on the revisions to the rules on cookies (in the proposed e-Privacy Regulation), the updated guidelines further demonstrate the emerging consensus amongst data protection authorities that website visitors should be given clear choices about whether or not they accept cookies, even if it can be questioned whether individuals actually read and understand the choices they are given.

Photo of Dan Cooper Dan Cooper

Daniel Cooper is co-chair of Covington’s Data Privacy and Cyber Security Practice, and advises clients on information technology regulatory and policy issues, particularly data protection, consumer protection, AI, and data security matters. He has over 20 years of experience in the field, representing…

Daniel Cooper is co-chair of Covington’s Data Privacy and Cyber Security Practice, and advises clients on information technology regulatory and policy issues, particularly data protection, consumer protection, AI, and data security matters. He has over 20 years of experience in the field, representing clients in regulatory proceedings before privacy authorities in Europe and counseling them on their global compliance and government affairs strategies. Dan regularly lectures on the topic, and was instrumental in drafting the privacy standards applied in professional sport.

According to Chambers UK, his “level of expertise is second to none, but it’s also equally paired with a keen understanding of our business and direction.” It was noted that “he is very good at calibrating and helping to gauge risk.”

Dan is qualified to practice law in the United States, the United Kingdom, Ireland and Belgium. He has also been appointed to the advisory and expert boards of privacy NGOs and agencies, such as Privacy International and the European security agency, ENISA.

Photo of Mark Young Mark Young

Mark Young, an experienced tech regulatory lawyer, advises major global companies on their most challenging data privacy compliance matters and investigations.

Mark also leads on EMEA cybersecurity matters at the firm. He advises on evolving cyber-related regulations, and helps clients respond to…

Mark Young, an experienced tech regulatory lawyer, advises major global companies on their most challenging data privacy compliance matters and investigations.

Mark also leads on EMEA cybersecurity matters at the firm. He advises on evolving cyber-related regulations, and helps clients respond to incidents, including personal data breaches, IP and trade secret theft, ransomware, insider threats, and state-sponsored attacks.

Mark has been recognized in Chambers UK for several years as “a trusted adviser – practical, results-oriented and an expert in the field;” “fast, thorough and responsive;” “extremely pragmatic in advice on risk;” and having “great insight into the regulators.”

Drawing on over 15 years of experience advising global companies on a variety of tech regulatory matters, Mark specializes in:

  • Advising on potential exposure under GDPR and international data privacy laws in relation to innovative products and services that involve cutting-edge technology (e.g., AI, biometric data, Internet-enabled devices, etc.).
  • Providing practical guidance on novel uses of personal data, responding to individuals exercising rights, and data transfers, including advising on Binding Corporate Rules (BCRs) and compliance challenges following Brexit and Schrems II.
    Helping clients respond to investigations by data protection regulators in the UK, EU and globally, and advising on potential follow-on litigation risks.
  • GDPR and international data privacy compliance for life sciences companies in relation to:
    clinical trials and pharmacovigilance;

    • digital health products and services; and
    • marketing programs.
    • International conflict of law issues relating to white collar investigations and data privacy compliance.
  • Cybersecurity issues, including:
    • best practices to protect business-critical information and comply with national and sector-specific regulation;
      preparing for and responding to cyber-based attacks and internal threats to networks and information, including training for board members;
    • supervising technical investigations; advising on PR, engagement with law enforcement and government agencies, notification obligations and other legal risks; and representing clients before regulators around the world; and
    • advising on emerging regulations, including during the legislative process.
  • Advising clients on risks and potential liabilities in relation to corporate transactions, especially involving companies that process significant volumes of personal data (e.g., in the adtech, digital identity/anti-fraud, and social network sectors.)
  • Providing strategic advice and advocacy on a range of EU technology law reform issues including data privacy, cybersecurity, ecommerce, eID and trust services, and software-related proposals.
  • Representing clients in connection with references to the Court of Justice of the EU.
Photo of Paul Maynard Paul Maynard

Paul Maynard is an associate in the technology regulatory group in the London office. He focuses on advising clients on all aspects of UK and European privacy and cybersecurity law relating to complex and innovative technologies such as adtech, cloud computing and online…

Paul Maynard is an associate in the technology regulatory group in the London office. He focuses on advising clients on all aspects of UK and European privacy and cybersecurity law relating to complex and innovative technologies such as adtech, cloud computing and online platforms. He also advises clients on how to respond to law enforcement demands, particularly where such demands are made across borders.

Paul advises emerging and established companies in various sectors, including online retail, software and education technology. His practice covers advice on new legislative proposals, for example on e-privacy and cross-border law enforcement access to data; advice on existing but rapidly-changing rules, such the GDPR and cross-border data transfer rules; and on regulatory investigations in cases of alleged non-compliance, including in relation to online advertising and cybersecurity.