Compulsary acceptane of tracking cookies contrary to the GDPR
On 7 March 2019, the Dutch Personal Data Authority (‘AP’) announced through a so-called ‘normuitleg’ standard explanation, summarizing, that websites which compel visitors to agree to ‘tracking cookies’ (e.g. through a so-called ‘cookie wall’), do not comply with the General Data Protection Regulation (‘GDPR’). According to the AP, website visitors do not have a free choice under this obligation and so there is no valid consent

AP departs from track of ACM in NPO case

In this respect, the AP departs from the track followed 5 years ago by the other supervisor of cookie legislation, the ACM, in the so-called NPO case. Said case concerned use by NPO of a cookie wall which compelled viewers to agree, inter alia, to insertion of advertising cookies. At the time, the ACM ruled that access to a website which is provided by or on behalf of a legal entity established under public law should not be made subject to granting consent for cookies.

These last 5 years all the market actors concluded from this that making consent e.g. ‘tracking cookies’ subject to consent is allowed for websites which are offered in the normal commercial / private sector and which have sufficient alternatives. After all, the website visitor does not have to visit the website, and has the opportunity to use another website, which may not use tracking cookies. And so, there is freedom of choice and consent is freely granted.

AP will intensify enforcement

It is not clear why the AP presently started on a different track. The AP informs that it received dozens of complaints and therefore it wants to intensify verification and give more clarification. So, the market has been warned……. …..

Linda Eijpe