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ECJ ruling: Active consent to advertising cookies required – even in the absence of personal reference

The European Court of Justice (ECJ) ruled on 1 October 2019 that website operators must always obtain the active consent of website visitors for the use of advertising cookies. A default checkbox, which must be unchecked to refuse consent, can therefore not be considered to be an effective consent. Consequently, in the ECJ’s view, there is no effective consent if the use of cookies is permitted by ticking off a checkbox set by the website operator, which the user must uncheck in order to refuse consent.

In the Case C-673/17, the ECJ also confirmed that the obligation to provide information and to obtain consent applies even if no personal data is processed. In addition, the ECJ clarified that in order to fulfil the duty of disclosure, information on the duration of the cookies’ function and the possibility of access by third parties must also be furnished. Although all these points of view are not surprising, they are still not taken into account by a large number of website operators. The clarifications provided by the ECJ should therefore be taken as an opportunity to question the use of cookies on the company’s own websites and, if necessary, to bring them in line with the legal situation confirmed by the ECJ.

In Switzerland, the use of cookies is governed by Art. 45c of the Telecommunications Act (TCA) and by the provisions of the Data Protection Act (DPA). Accordingly, it must be primarily disclosed to users that cookies are being used, for what purpose and how the setting of cookies in the browser can be deactivated (“opt-out”). In Switzerland, a reference in the company’s data protection declaration is generally (still) regarded as sufficient. As a result, many Swiss websites have not yet implemented a corresponding consent mechanism.

However, since Swiss websites often also monitor the access and online behaviour of people in the EU, EU regulations must nevertheless be observed. The ECJ ruling is therefore also of practical relevance for numerous Swiss companies. It is therefore advisable to review the processing methods to ensure that they comply with the latest developments in EU law.

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