Do cookie walls allow for valid consent to the placement of advertising cookies? No, according to European regulators and the CNIL. Cookie walls can be an engaging method. We explain how to create a compliant cookie wall. This is today’s legal news.
What is a cookie wall?
In the eyes of French and European regulators, displaying advertisements is secondary. Visitors come to a site for information, kitchen accessories, and fashion articles, but not for ads.
To use:
- Cookies are required for the display, accounting, and capping of ads;
Cookies are used to collect navigation data, perform behavioral targeting and personalize displayed ads.
- For this, a specific prior agreement must be requested. Some website publishers are therefore concerned about the threat to their advertising revenue.
- A cookie wall allows the prohibition of prior consent for cookies previously identified by the publisher.
It takes the form of a pop-up, forcing the user to choose. This is inspired by paywalls that encourage users to subscribe to read the rest of an article.
In short, the user is asked to pay for the contents with their data or money.
Towards the end of cookie walls?
Is a cookie wall legal? Regulators have said no:
- The European regulator (EDPB) prohibited cookie walls in principle in 2018;
- The CNIL reiterated this position in its guidelines in July 2019 because refusing cookies make access to content impossible;
The EDPB still opposes cookie walls in its 2020 guidelines. What is being criticized is the inability to refuse cookies.
- The cookie wall seemed dead and buried. And yet…
Forbidden to forbid the cookie wall
On September 18, 2019, 9 professional associations challenged the CNIL’s guidelines before the Council of State.
The conclusions of the public rapporteur, Alexandre Lallet, were reported on June 12 by the AFP news agency in Le Figaro. Some see it as a rebuke of the CNIL.
On June 18, the Council of State ruled…in part…Indeed, it believes the CNIL cannot make a “general and absolute” prohibition in guidelines. It must analyze each case individually, authorize certain practices, and punish others.
Our tips for creating a cookie wall
- Read the Council of State’s decision thoroughly and capitalize on all the information it contains. Don’t just rely on press articles.
- Adopt a marketing approach, not just legal, to manage your cookies. Want to know more? Check out our posts on online relationships and chosen marketing.
- Display the “Accept” and “Refuse” buttons on the first screen of the module. For the user, it’s about de-dramatizing data sharing with your brand. To do this, be reassuring and accept when people say no.
- Dark designs, messages that make the reader feel guilty, consent fatigue…Avoid dark patterns. Do not force consent; request it.
- Only consent-required cookies should be deposited once the user authorizes or refuses them.
- Make the cookie management module available from all pages of your site. Consent is not just a one-time action to be renewed every 13 months. Our differentiating tip? A button opens at any time.
- Are you worried about the impact of a cookie wall on your opt-ins? Test an interface and make sure refusals don’t explode. And once you’re reassured, make the refusal buttons more visible.
The wall, one approach among others?
Cookies, particularly advertising or personalization cookies, must obtain the prior consent of the internet user.
Therefore, you must display an interface on your website requesting this consent. The Council of State says it can be a pop-up asking users to choose when they enter the website.
Be careful; it will not be a matter of forcing an agreement on the deposit of cookies in exchange for access to content. The CNIL will also indeed be called upon to specify what is in compliance and what is not with legal requirements.
If the cookie wall worries you, other approaches are possible, such as a banner at the top or bottom of the page.
The cookie issue remains under the high vigilance of the CNIL. Ongoing debates do not prevent you from advancing the GDPR compliance of your websites.
The Council of State offers a reprieve to online media and postpones the inevitable revolution of their economic model. Is it for the good of the press, readers, or advertisers? The coming months will tell.
