New cookie guidelines and other tracking tools
He was born in 9.7.2021 the publication in G.U.. of the Resolution 10 June 2021 of the Guarantor for the protection of personal data: Guidelines for cookies and other tracking tools.
With provision no. 231 I'm, indeed, new guidelines for the protection of users have been approved.
The goal announced by the Guarantor was to strengthen the decision-making power of users regarding the use of their personal data in online browsing.
The need to approve new guidelines arose above all from the need to tackle the melting pot of imaginative information and cookie banners in a more incisive way, proliferated on most websites, which have little to do with compliance with regulatory indications and the Guarantor.
This new intervention by the Guarantor is derived, however, from the regulatory changes that have taken place with respect to the previous guidelines of the 2014, as well as the finding that the rules have not been adopted correctly and concretely.
The constant monitoring of the Authority and the numerous reports from the users themselves made it possible to ascertain the presence of gaps that must be filled.
In light of this, declared the Guarantor, “the need arose for a strengthened framework of safeguards that are more geared towards favoring and making effective the control over the personal information being processed and, definitely, the individual's capacity for self-determination”. This means that a certain treatment may be legitimate only and exclusively in the presence of an express consent from the interested party; on the other hand, it will no longer be possible to exploit the possibility of using tricks to gloss over this task.
It will therefore not be possible to invoke, as instead was done and found by the same Guarantor during the checks carried out on various websites, the justifying the legitimate interest of the owner to justify the use of cookies or other tracking tools.
By default, at the time of the user's first access to a website, no cookies or other tools other than technical ones can be placed on your device, nor can any other active or passive tracking technique be used without express consent, through an unequivocal positive act with which the interested party expresses his free intention, specific, informed and unequivocal to accept the processing of personal data concerning him.
A written declaration is therefore required, also through electronic means, and this could include: the selection of a specific box on a website, the choice of technical settings for information society services or any other declaration or any other behavior that clearly indicates, in this context, that the interested party accepts the proposed treatment. On the other hand, silence cannot be configured as consent, the inactivity or the pre-selection of boxes.
Even the simple scrolling technique, the Guarantor insists, complying with what has been clarified by the EDPB with opinion no. 5/2020 of 4 May 2020, it is never suitable, by itself, to fully express the interested party's manifestation of will to accept to receive the positioning, within your terminal, of cookies other than technical ones e, so, it cannot be equivalent to consent under any circumstances.
It should be noted that, also on the cd. cookie wall, that is, that binding mechanism – take it or leave it, with which the user is obliged, without alternative, to express their consent to the receipt of cookies or other tracking tools, under penalty of inability to access the site, the Guarantor expressed himself very clearly, considering it inappropriate. Such a mechanism, indeed, would not allow any consent obtained to be qualified as compliant with the characteristics imposed by the Regulation, with particular reference to the requirement of freedom, therefore it can only be considered illegal.
The observation of the behavior of the websites and the reports received by the Guarantor have placed the latter's attention on a further problem: the excessive repurposing of the banner for the purpose of acquiring consent, where the user has previously denied it.
In the opinion of the Guarantor, this attitude appears likely to damage the user's freedom, who is induced to give consent, just to continue browsing, free from the appearance of the banner containing the brief information and the request for consent.
In this context, therefore, it is appropriate that the initial choice of the interested party to maintain default settings and therefore not to consent to the use of cookies or other tracking tools is recorded by the system and the provision of consent is no longer requested except when special circumstances exist.
If the user chooses, as it is in its full availability, to maintain those default settings and therefore not to give their consent to the placement of cookies or the use of other tracking techniques, it should limit itself to closing the banner without being forced to access other areas or pages specifically dedicated to this.
Another simplification introduced by the Guarantor in these new guidelines, which is worth highlighting, is that in the event that the only presence of technical cookies or other similar tools is foreseen, information about them may be given on the homepage or in the general information without the need to affix specific banners to be removed by the user.
A wish that the Guarantor finally intends to underline with these new guidelines on cookies is that of: "Initiate a reflection among all interested parties about the need for the adoption of a standardized coding relating to the type of commands, of the colors and functions to be implemented within the websites to achieve the widest uniformity, to the benefit of transparency, clarity and therefore also better compliance with the rules ".
And then on the basis of this need, shareable and desirable – trusting in an answer of the interested subjects to arrive to a near future codification – we just have to underline the term, identified by the Authority, from 6 months from publication in the Official Gazette within which the subjects held must comply with the new Guidelines.
Scientific contribution of’Lawyer. Benedictis Camilla