Cookies and Privacy – consent must be clear, specific and unequivocal

The European Data Protection Board (EDPB) has returned to the matter of consent relevant to GDPR, clarifying, in the Guidelines issued last May, that the consent given by users in the presence of so-called cookie walls and in the case of so-called scrolling is to be considered invalid for the processing of personal data.

More precisely, according to the Committee, the consent given in the presence of a screen, inserted within a web page, which prevents the user from continuing to navigate without having first given consent (‘cookie wall‘), is to be considered flawed because it is conditioned by the user’s need to consult that particular website.

In the same way, the consent to the use of cookies and the consequent processing of personal data issued by the user through the so-called “scrolling” consisting in the simple activity of scrolling down a site or browsing its pages is flawed because it is not clear, not specific and equivocal.

The Guidelines, therefore, are in line with what had been decided a few months earlier (in October 2019) by the Court of Justice of the European Union (CJEU) which, addressing the issue of consent in relation to cookies in the specific case of a pre-selected checkbox, had stated the need for explicit consent, granted actively and specifically by website users.

Desiree Pasquariello