In a preliminary ruling from the European Court of Justice, the court has ruled that the acceptance of cookies on websites requires active consent.
By using a pre-ticked checkbox on a website, it cannot be ruled out that the user in question has not read the information that accompanied the checkbox and it cannot be ruled out that the user has not consented. Therefore, valid consent requires an active action on the part of the user. The CJEU also considered that the requirement of active consent includes all information and not just personal data, as article 5(3) of Directive 2002/58 (e-Privacy Directive) refers in general to 'information'.
We, therefore, recommend checking up on the company's website(s) to see if it complies with the CJEU's stricter requirements for accepting cookies. "Opt-out" solutions can no longer be used with pre-ticked checkboxes. Instead, an "opt-in" solution should be used where the user can tick a box to accept cookies. In addition, attention should be given to whether sufficient information has been provided to users of the same website about cookies and their function.