May 18, 2020

The EDPB has published a slightly updated version of the Guidelines on consent that it first published in April 2018. The updated Guidelines clarify the following:

1. the validity of consent provided by the data subject when interacting with so-called “cookie walls”; and
2. example 16 on scrolling and consent.

The paragraphs covering these two issues have been revised and updated, while the rest of the document has been left unchanged, except for editorial changes. The update covers:

• the section on Conditionality (paragraphs 38 to 41); and
• the section on Unambiguous indication of wishes (paragraph 86).

The Guidelines now provide that in order for consent to be freely given, “access to services and functionalities must not be made conditional on the consent of a user to the storing of information, or gaining of access to information already stored, in the terminal equipment of a user (so called cookie walls)”.

Example 6a at paragraph 40 explains that where a provider uses a cookie wall, i.e. he/she does not allow access to the content of his/her website without clicking on the “accept cookies” button, the data subject does not have a genuine choice, meaning that consent is not freely given.

As for paragraph 86 (example 16), the Guidelines now state that “actions such as scrolling or swiping through a webpage or similar user activity will not under any circumstances satisfy the requirement of a clear and affirmative action: such actions may be difficult to distinguish from other activity or interaction by a user and therefore determining that an unambiguous consent has been obtained will also not be possible. Furthermore, in such a case, it will be difficult to provide a way for the user to withdraw consent in a manner that is as easy as granting it”.

To access the updated Guidelines, click here.