The Advocate General of the Court of Justice of the EU (CJEU) has delivered an Opinion in the Planet49 case (Case C-673/17), finding that a pre-ticked checkbox giving consent for cookies does not constitute valid consent under the e-Privacy Directive 2002/58 read in conjunction with the Data Protection Directive 95/46 or the GDPR.
In order to participate in a lottery organised by Planet49, an internet user was confronted with two checkboxes which had to be clicked or unclicked before he could hit the ‘participation button’. The first checkbox, which was not pre-ticked, required the user to accept being contacted by a range of firms for promotional offers. The second checkbox, which was pre-ticked, required the user to consent to cookies being installed on his computer.
The Advocate General gave the following Opinion:
- There is no valid consent within the meaning of the e-Privacy Directive 2002/58 , in conjunction with the Data Protection Directive 95/46, in a situation such as that in the present proceedings where the storage of information, or access to information already stored in the user’s terminal equipment, is permitted by way of a pre-ticked checkbox which the user must deselect to refuse his consent.
- The same applies in regard to the interpretation of the e-Privacy Directive 2002/58 read in conjunction with the GDPR.
- The consent requirements for cookies apply regardless of whether or not the information stored and accessed constitutes personal data.
Whilst the Advocate General’s Opinion is not legally binding, it will be of persuasive value to the CJEU in making its decision. The CJEU is expected to issue a final judgment in the coming months.