The EDPB has adopted new guidelines on consent that directly concern actors in the digital market
with respect to the use of cookies.

In doing so the EDPB firmly reaffirms that:

  • Scrolling on a page or navigating on an Internet site does not satisfy the requirement for a clear positive act and the consent thereby obtained would not be in compliance with RGPD requirements; and
  • For consent to be freely given, the data subject must be able to refuse or withdraw his/her consent without suffering any prejudice. To that end, the fact that a user has an alternative option offered by a third party does not allow the consent to be deemed freely given.

The EDPB provides the following example to illustrate:

‘A website provider puts into place a script that will block content from being visible except for a request to accept cookies and the information about which cookies are being set and for what purposes data will be processed. There is no possibility to access the content without clicking on the “Accept cookies” button. Since the data subject is not presented with a genuine choice, its consent is not freely given.

This does not constitute valid consent, as the provision of the service relies on the data subject clicking the “Accept cookies” button. It is not presented with a genuine choice.’

The takeaway: a service provider may not prevent data subjects from accessing a service because they did not consent to the use of cookies.

Our advice:

⇒ As a reminder, not all cookies require that the user give his/her consent. We thus recommend that you verify in advance which cookies may be installed when a user connects, and which require his/her prior consent.
⇒ Also, do not confuse consent, withdrawal of consent or the right to object, and provide for adequate mechanisms.

You may consult the new guidelines in English by clicking on the following link: Guidelines 05/2020 on consent.

To learn more, you can consult the following information notes on the EDPB website by clicking on the links:
– Sanctions related to cookies: Belgium and Spain; and
– Initial conclusions on the use of cookies: Greece.

Our teams advise on a daily basis digital market actors and are here to assist you:

Me Renaud Le Squeren
Avocat à la Cour
Me Héloïse Cuche
Me Alison Front
Kelly QUESADA VEGA Kelly Quesada Vega


By Héloïse CUCHE, Avocat.