"Cookie walls" non-compliant with GDPR says regulator

Published on Wednesday, March 20, 2019 - 08:25 by Peter Galdies

The Dutch DPA has issued clarification to confirm that "cookie walls" that demand a website visitor agrees to their internet browsing being tracked for ad-targeting as a condition of entry to the site are not compliant with European data protection law.

The guidance makes it clear that internet visitors must be asked for permission in advance for any tracking software being placed and this extends to third-party tracking cookies; tracking pixels; and browser fingerprinting tech. This permission must be freely obtained and therefore a free choice must be offered - there can be no adverse consequence on the use of the site if the user chooses not to accept these technologies.  As the Dutch DPA says: “Permission is not ‘free’ if someone has no real or free choice. Or if the person cannot refuse giving permission without adverse consequences".

“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.

A spokesperson in response to an enquiry from TechCrunch that while they 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.”

The regulator said it has received dozens of complaints from internet users who had had their access to websites blocked after refusing to accept tracking cookies and therefore it has taken the step of publishing clear guidance on the issue in addition to writing to the organisations concerned instructing them to make changes to meet GDPR requirements. As a further consequence it will be intensifying monitoring.

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