Do you have pre-ticked consent boxes on your website for cookies? You know the type:

✅ Uncheck this box if you do not agree to cookies

Well, you should change them as the European court recently ruled these are unlawful. Given the clearer consent language under GDPR, this decision has probably come as no surprise to anyone (perhaps except for Planet 49 which was contesting the case). The court said:

• Consent to cookies is not valid by way of a pre-checked checkbox which the user must deselect to refuse his or her consent
• A website user must be informed how long the cookies will last and whether or not third parties may have access to those cookies

Cookies – the small text files placed on a user’s website – can be a useful means for understanding your users better, saving their preferences to improve their experience of your website. But cookies can also be used in a more intrusive manner, tracking users not just across one site but others, enabling third party advertisers to hone ads and follow users as they surf around the web.

Don’t forget, PECR (the Privacy & Electronic Communication Regs) apply to cookies whether or not they contain personal data. This says you must obtain user consent to cookies. GDPR then additionally applies to those which contain personal data.

This ruling is a warning shot that it is time to review which planet your cookies are from. If they’re from planet 49 [*hmm, that pun sounded better in my head], you should update your approach to your cookies. For example, do you distinguish between your cookies and those of third parties who advertise through your site? Do you have a different approach to cookies which are strictly necessary to run the website as opposed to those which aren’t? Do you provide clear information on your use of cookies? Do you give users the opportunity to actively give consent to cookies and allow them to disable cookies?

It’s better to update your approach to cookies now before the Information Commissioner gets in touch and forces you to. If you don’t know what to do, give me a shout by email or phone me on +44 (0)20 7467 8742.