FR: New CNIL guidelines for cookies and other tracking tools

2B Advice
The framework of reference for the assessment of the lawfulness of cookies and other tracking means had to be adapted on the basis of the GDPR, in particular with regard to the conditions of valid consent and the requirement to provide evidence.

Surfing the website or continuing to use an application does not constitute - according to the guidelines of the CNIL - valid consent. Checked boxes or a general acceptance of the terms and conditions are also not considered clear and affirmative actions, which is an essential condition of a valid consent. The CNIL guidelines specify that the data subjects must be able to give their consent for each individual purpose and that at least the following information must be made directly available to them: the identity of the controller, the purposes for which the data was processed, the right of withdrawal.

In addition, by referring to the declaration of the European Data Protection Committee on the revision of the ePrivacy Regulation of 25 May 2018, the CNIL highlights that a valid voluntary consent only exists if the data subject does not suffer major disadvantages in the absence or withdrawal of it.

Finally, the provision and withdrawal of the consent must be designed in a user-friendly way and the given consent must be verifiable.

It should be noted that, under strict conditions, visitor measurement systems are an exception for which only an objection mechanism needs to be foreseen.

We recommend that companies operating in France use the transitional period of 12 months, during which the CNIL will not apply the stricter framework as a standard for their control, to ponder a solution that also complies with the possible rules of the future e-privacy regulation. The CNIL has pre-emptively adopted this stricter framework. It has in fact chosen to delete its cookie banner and not to place any tracers until the user has given his consent by actively going to the cookie management module or directly via the content pages.

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