GDPR: Judicial Oversight of the French supervisory authority (CNIL) – July 2020

The use of a “cookie wall” which consists of blocking access to an internet site if one refuses to consent to cookies, has largely been punished by supervisory authorities and is even a target in new consent guidelines adopted by the European Data Protection Board (EDPB) in May of 2020 (you may consult our article on this topic by clicking on the following link: https://www.dsm.legal/fr/consentement-et-cookies-luxembourg-rgpd-digitalleuropean-data-protection-board-edpb/).

Thus, supervisory authorities consider that this practice forces a user’s consent and consequently the “freedom of consent” requirement, necessary to valid consent, is no longer fulfilled.

The French Council of State’s (Conseil d’Etat) decision of 19 June 2020 called into question the general and absolute prohibition by deeming that such a prohibition of the use of a “cookie wall”, deduced from the requirement for a user’s freely-given consent pursuant to the GDPR exceeds the powers of a supervisory authority in the context of an act of the type called “soft law” as are the guidelines.

The guidelines adopted by supervisory authorities, such as France’s CNIL here, may have significant influence on practice, but create neither a right nor an obligation vis-à-vis the various actors.

However, contrary to what has been set forth in several publications, the Council of State’s decision does not constitute an authorization for the use of a “cookie wall”: here the Council of State does not make a determination on the merits of the issue. It simply determines the fact that the French supervisory authority (the CNIL) may not, under cover of an act of soft law pronounce such a general and absolute prohibition

It would thus be up to legislators to take up the charge to arrive at such a result. Failing that, it would be left to the judges who review the application of the text in the context of a dispute to set the scope of the interpretation of the criteria of freedom of consent and its consequences.

Consult the Council of State’s decision by clicking here.

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