Cookies are mentioned only once in the EU General Data Protection Regulation (GDPR), but the repercussions are significant for any organisation that uses them to track users’ browsing activity.
Recital 30 of the GDPR states:
Natural persons may be associated with online identifiers […] such as internet protocol addresses, cookie identifiers or other identifiers […]. This may leave traces which, in particular when combined with unique identifiers and other information received by the servers, may be used to create profiles of the natural persons and identify them.
In short: when cookies can identify an individual via their device, it is considered personal data.
This supports Recital 26, which states that any data that can be used to identify an individual either directly or indirectly (whether on its own or in conjunction with other information) is personal data.
What it means
Not all cookies are used in a way that could identify users, but the majority are and will be subject to the GDPR. This includes cookies for analytics, advertising and functional services, such as survey and chat tools.
To become compliant, organisations will need to either stop collecting the offending cookies or find a lawful ground to collect and process that data. Most organisations rely on consent (either implied or opt-out), but the GDPR’s strengthened requirements mean it will be much harder to obtain legal consent. The consequences of this were discussed during the 2016 Data Protection Compliance Conference and its findings described by Cookie Law:
- Implied consent is no longer sufficient. Consent must be given through a clear affirmative action, such as clicking an opt-in box or choosing settings or preferences on a settings menu. Simply visiting a site doesn’t count as consent.
- ‘By using this site, you accept cookies’ messages are also not sufficient for the same reasons. If there is no genuine and free choice, then there is no valid consent. You must make it possible to both accept or reject cookies. This means:
- It must be as easy to withdraw consent as it is to give it. If organisations want to tell people to block cookies if they don’t give their consent, they must make them accept cookies first.
- Sites will need to provide an opt-out option. Even after getting valid consent, sites must give people the option to change their mind. If you ask for consent through opt-in boxes in a settings menu, users must always be able to return to that menu to adjust their preferences.
Achieving compliance
Soft opt-in consent is probably the best consent model, according to Cookie Law: “This means giving an opportunity to act before cookies are set on a first visit to a site. If there is then a fair notice, continuing to browse can in most circumstances be valid consent via affirmative action.”
The EU GDPR Documentation Toolkit is designed and developed by expert GDPR practitioners, and has been used by thousands of organisations worldwide. It includes:
- A complete set of easy-to-use and customisable documentation templates, including a consent procedure, which will save you time and money and ensure GDPR compliance;
- Helpful dashboards and project tools to ensure complete GDPR coverage;
- Direction and guidance from expert GDPR practitioners; and
- Two licences for the GDPR Staff Awareness E-learning Course.
Luke thanks for the concise/valuable information, as meeting GDPR compliance before 25 May 2018 is crucial.
Hi,
Nice article. Now we have different cookies:
1 – To track user authentication when user login to a web application
2 – Cookies for analytics e.g. Google Analytics, Facebook etc.
3 – Cookies set when you fill forms e.g. contact us etc.
In case of 1 I believe mentioning in the privacy policy would be sufficient as without registration such cookies can’t be stored.
For 2 such cookies are set automatically as user lands on any website, do we need a consent? I doubt because cookies from different analytical service anonymously track users and hence this can’t be used to identify a user – nevertheless should be explained in the privacy policy
In case of 3, this is similar like 1 and if user unsubscribe this cookie ‘must’ be removed.
In case of all of above I believe a separate popup for implicit consent that this site uses cookies is not required or is it still a must?
Hi Wahaj,
Users can be identified in all three of these scenarios, so you need to establish a lawful basis for collecting data. But remember, this doesn’t have to mean consent. There are five other bases.
The moment you interact with a website, even to see the privacy policy itself or to be shown a consent dialogue, indeed even if you request a non-existent page, the server itself will log your IP address – this is built into all servers. It is used for simple traffic analysis, to ban certain rogue IPs and to identify issues with teh server and attempts to break in to the server – without it we are saying to any hacker “please go ahead and attack my machine, I am not watching” …
Hi Luke
Can you explain the difference between soft opt-in consent and ‘By using this site, you accept cookies’ messages please? If you do not give consent then it will result in not being able to use the website so it amounts to the same thing doesn’t it?
Hi Clare,
Good question! There is a very subtle difference between the two. Messages that say ‘By using this site, you accept cookies’ imply that cookies will start being collected as soon as you visit the site. In other words, the user has their information collected before they’ve had a chance to consent.
A soft opt-in message will say “Our site uses cookies.”, but it won’t start collecting cookies until the user clicks ‘okay’ or navigates to another page on the site. This way, the user can choose to leave the page without any cookies having been collected or click on the message to customise their cookie preferences.
Question regarding storing a cookie allow for user to bypass their login:
Clearly, personal info is being stored in a cookie, however if this information is only used for login authentication and not used for any other tracking , then will this action still violate GDPR compliance?
The GDPR is just as concerned about organisations storing personal data as it is with how that information is used. So, yes, this information would need to be stored in accordance with the GDPR’s requirements.
This site uses cookies but I don’t see any cookie notice nor link to a Privacy Policy. I may have made an affirmative acceptance in the past but if so I can’t see any method to revoke should I wish.
Hi Nick,
When you click on our site, you will see a notice that says we collect cookies, with a link to our cookie policy. This process isn’t GDPR compliant, but we can assure you that it will be by 25 May 2018.
Hi
Thanks for the article. Serious question: with the internet being an inherently global technology, is the GDPR not too localised a solution? How can non-EU companies be compelled to follow this regulation for which they have no obligation?
I’d really appreciate your comments
Hi Pete,
That’s certainly a legitimate criticism, but the GDPR is a product of the European Union, so its powers are limited to EU-based concerns. No one is suggesting that organisations that “have no obligation” to comply with the GDPR will be forced to do so.
However, there are plenty of non-EU organisations that process EU residents’ personal data – and that does fall within the GDPR’s scope. Such organisations must register with an EU member state of their choosing, which will be responsible for enforcing the Regulation. If they don’t, they run the risk of breaching EU residents’ personal data or having an EU resident exercise one of their rights under the GDPR, and then being “found out”.
I know a lot of non-tech-savy people who get confused by cookie policies believing all cookies are bad due to the methods some websites present their cookie notice (or hide it!), which is far from the truth. Cookies which are not involved with personal data (or that could be used to get it) are allowed without consent, so it seems to me that one option would be to use a mix of implied and explicit consent to cover all cookies used by a given website. So for example, the cookie notification request advises the visitor that by using the site, they accept the essential basic cookies (such as session cookies or simple preference cookies or cache information cookies that don’t contain or pass on personally identifiable data) which is the implied consent, but seperately requests explicit consent for tracking or analytics cookies which do not load unless the customer has selected “accept”. If the customer ignores the message or clicks on “decline” then the analytics/tracking cookies do not load. The website visitor is then aware of the required cookies. What are your thoughts on this method of handling the cookie requirements?
Who requires to show this cookie notice? whey there is no cookie notice on your site?
Hi Ray,
We do have a cookie notice: https://www.itgovernance.eu/cookie-policy.
Hi, I have a question regarding the duration cookies can be stored on a user’s browser? Apparently the GDPR will allow a maximum of 13 months. Is it something that Facebook or other advertising platforms are updating? Or is it something we will need to update manually?
Thank you in advance!
Best regards
Hi Olivier,
It’s the organisation’s duty to comply with the GDPR. However, cookies — being personal data — are subject to the same data subject rights. That means you could request that they be erased.