European Enforcement Title
January 10, 2020
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A CJEU cause relevant to web pages compliance with GDPR rules.

Dear partners, as you have become accustomed to our usual practice, we wish to bring to your attention the most useful information. Therefore, we would like to present to you a relevant CJEU case regarding the compliance of web pages with GDPR rules.

Therefore, under the GDPR empire, consent boxes cannot be pre-checked, so if you own, manage a web page, take care of this.

În Cauza C-673/17 privind protecția datelor cu caracter personal, ni se arată că, pentru a participa la o loterie organizată de Planet49, un utilizator de internet a fost confruntat cu două casete de selectare (check-box) pe care trebuia să fie făcut click sau să fie debifate  înainte de a putea apăsa butonul de participare.

One of the check boxes requested that the user agree to be contacted by a number of companies for promotional offers, and another checkbox asked the user to consent to the cookies being installed on his computer. These are, in short, the facts of the present decision for reference from the Bundesgerichtshof (Federal Court of Justice, Germany).

In view of these issues, the German Court referred the following questions to the CJEU:

‘(1) (a) constitutes a valid consent within the meaning of Article 5 (3) and Article 2 (f) of Directive 2002/58 in conjunction with Article 2 (h) of Directive 95/46, if the storage of information or is access to the information already stored in the user’s terminal equipment allowed through a pre-confirmed checkbox, which the user must deselect in order not to consent?

  1. b) For the purpose of applying Article 5 (3) and Article 2 (f) of Directive 2002/58 in conjunction with Article 2 (h) of Directive 95/46, it is relevant whether the information stored or accessed constitutes data of a character personal?

c) In the circumstances mentioned in the first question point (a), there is a valid consent within the meaning of Article 6 (1) (a) of Regulation no. 2016/679?

(2) What information must be provided by the service provider in order to provide the user with clear and complete information that must be carried out in accordance with Article 5 (3) of Directive 2002/58? Does this include the duration of the cookie’s operation if the third party is allowed access to cookies? ‘‘ 

THEREFORE

(1) There is no valid consent within the meaning of Article 5 (3) and Article 2 (f) of Directive 2002/58 / EC of the European Parliament and of the Council of 12 July 2002 on the processing of personal data and protection (Directive on confidentiality and electronic communications), in conjunction with Article 2 (h) of Directive 95/46 / EC of the European Parliament and of the Council of 24 October 1995 on the protection of persons with regard to the processing of personal data and the free movement of such data in a situation such as from the main action, if the storage of information or access to information already stored in the user’s terminal equipment is allowed through a preselected box which the user must deselect to refuse the consent and where the consent is not separate, but at the same time with the confirmation of participation in an online lottery.

(2) The same is true for the interpretation of Article 5 (3) and Article 2 (f) of Directive 2002/58 in conjunction with Article 4 (11) of Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 on the protection of natural persons with regard to the processing of personal data and the free movement of such data and repealing Directive 95/46 (General Regulation on data protection – GDPR).

(3) For the purposes of applying Article 5 (3) and Article 2 (f) of Directive 2002/58 in conjunction with Article 2 (h) of Directive 95/46, it does not matter if the information stored or accessed is personal data.

(4) The clear and comprehensive information that a service provider must provide to a user, pursuant to Article 5 (3) of Directive 2002/58, includes the operating time of cookies and the question of whether or not third parties are allowed access to these cookies.

For more information, our specialised solicitors are willing to assist you.

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