The last few weeks have seen a renewed focus on the EU’s Cookie Laws with news that European Data Protection Authorities are introducing a “Cookies Sweep Day” initiative in September to review compliance with the EU Cookie Directive. And in October, France’s CNIL will conduct cookie and website audits (more details in this Hogan Lovells blog post).
We also continue to see stepped-up enforcement of cookie laws by EU regulators.
Last week, the ACM or Dutch Authority for Consumers and Markets (formerly the OPTA), concluded that the Dutch Foundation for Public Broadcasting violated the requirements of notice and “prior express consent” under the Dutch cookie law.
Also – and importantly – the ACM‘s decision found that implied consent could not be presumed from the use of a website. The ACM ruling interpreting Dutch law is in sharp contrast to other countries, such as France, where the CNIL’s guidance specifically provides for implied consent in cases where the user continues to use the site.
The ACM ruling also reinforces a provision in Dutch law that gives the publisher the option to make website access conditional on consent. Read together with the prohibition on implied consent, these two provisions effectively give companies doing business in the Netherlands a Hobson’s choice: either force your user to provide consent or drive that user away from your site altogether.
This was the Netherlands’ second enforcement action of the year – the first being in May 2013 against ad network YD Benelux. Regulators in Spain took the lead earlier this year when they obtained the first European cookie fines from two companies that used cookies without obtaining informed consent and providing adequate control.
Clearly, it is important to comply with the EU’s cookie laws – and have a strategy identified ahead of this fall’s Cookies Sweep initiatives by EU regulators. It’s also important that your compliance strategy takes into account the various nuances of different EU cookie laws – especially in those jurisdictions where we see increased enforcement.