Everything You Need to Know About Cookie Consent

1. What is Cookie Consent and why is it important?
2. Types of Cookies
3. When you need to incorporate Cookie Consent
4. Legal Basis of Cookie Consent
5. What must a Cookie Banner contain?
6. 5 Tools for Cookie Consent
7. Conclusion

You've probably experienced this dozens of times: You visit a website and no more than 2 seconds later, a window pops up asking for your consent to use Cookies. While users may find this annoying, this so-called Cookie Consent is a legally binding matter that webmasters should perform diligently. Thus, this article provides an overview of what you need to take into account when dealing with cookie consent.

Please bear in mind that this article does not constitute legal advice but serves as a thematic overview. If you want to be legally 100% secure, turn to qualified legal professionals in case of doubt.

What is Cookie Consent and why is it important?

Cookie Consent refers to the consent that your users should provide before cookies can be placed on their devices. Technically speaking, cookies are small text files that are stored by websites to collect information about users' interactions with your site. These data can be used for various purposes such as personalizing content, improving user experience, or analyzing user behavior.

The significance and relevance of Cookie Consent for you as a webmaster should not be underestimated. It is crucial to obtain consent of your users for using cookies, ensuring data protection and compliance with GDPR and ePrivacy regulations. Violation of these rules can result in hefty penalties.

On the other hand, it is important for your users to know what cookies are placed on their devices and for what purpose. Cookie Consent gives them control over what data is collected from them and how it's used. It is an important protection mechanism to safeguard their privacy and to protect their data from misuse.

Types of Cookies

There are different types of cookies, differing in their function and purpose:

First Party Cookies

First Party cookies are the first type. These are placed by your own website and serve to collect information about the user and his interactions with the website. These cookies are often used to enhance user experience, such as by saving settings and preferences or by automatically recognizing users upon a repeat visit to your site.

Third Party Cookies

There are also Third Party Cookies, which are used by advertisers to collect data through advertisements on your site. Third Party Cookies are typically used by advertising networks or analytical tools to track user behavior across multiple websites, and to tailor personalized advertisements. The main difference between First Party and Third Party cookies lies in who places the cookies and the purpose they serve.

It's important to note that Third Party Cookies are often perceived as a privacy risk as they allow advertising networks and analytical tools to track user behavior across multiple websites. For this reason, many browsers, by default, have Third Party Cookies disabled or offer the option to block them.

When you need to incorporate Cookie Consent

In essence, Cookie Consent should always be in place when a website uses cookies. GDPR and ePrivacy regulations stipulate that users should be informed about the use of cookies and must provide their consent. This applies to all types of cookies, including First Party and Third Party Cookies.

In practice, however, there are differing views on how Cookie Consent should be implemented. Some webmasters opt for a banner or pop-up displayed when visiting the website asking users to consent to the use of cookies. Others prefer a less intrusive method, like a cookie banner at the bottom of the site or a cookie statement on a separate page.

There are specific scenarios, however, in which consent must be indicated in banner or pop-up form. This is the case, for example, when a site uses Third Party Cookies to display personalized advertisements.

Another crucial factor to consider when deciding if Cookie Consent should be in banner or pop-up form is user-friendliness. An intrusive cookie banner or pop-up can impair user experience which may lead users to leave the site. Therefore, it's important to find a balanced solution that ensures data protection while offering good user experience.

Exceptions to Cookie Consent

Just like always in life, there are exceptions to the rule. In the following cases, you do not need to obtain your users’ consent to process their data in compliance:

• The data collected is necessary for the fulfillment of a contract or legal obligations.

• The cookies are absolutely necessary for the smooth technical operation of the website.

Legal Basis of Cookie Consent

The legal basis for Cookie Consent in Germany is stipulated in the General Data Protection Regulation (GDPR) and the ePrivacy Regulation.

The GDPR is an EU regulation that came into effect on 25 May 2018, regulating data protection across the entire European Union. A major point of this regulation mandates that users must be informed about the use of cookies and must give their consent. Specifically, this is governed by Article 6 of the General Data Protection Regulation which defines the following criteria for data processing:

Processing is only lawful if at least one of the following conditions is met:

• The data subject has given consent to the processing of his or her personal data for one or more specific purposes;

• The processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract;

• The processing is necessary in order to protect the vital interests of the data subject or of another natural person;

Another key regulation is the so-called ePrivacy Regulation. This is an EU regulation specifically dealing with data protection in the realm of electronic communication. The ePrivacy Regulation is expected to complement the GDPR by setting forth specific requirements for data protection within the sphere of electronic communication, including the use of cookies. It is however still in its drafting stage with its enactment expected around mid to end of 2023.

For you as a webmaster, it's important to note that violations of the GDPR and the ePrivacy Regulation can result in hefty penalties. The magnitude of the penalties depends on different factors, such as the severity of the violation, the number of people affected, and the company's turnover.

What must a Cookie Banner contain?

A Consent Banner should contain certain information to inform your users about the use of cookies and provide them the option to give or refuse consent. Simply indicating that your website uses cookies is no longer permissible. At minimum, the following elements should be incorporated to comply with the GDPR:

• A clear header indicating that cookies are being used.

• A brief explanation of what cookies your website uses and for what purpose.

• A button that enables users to decline or approve individual cookies (like performance and tracking cookies).

• A link to your privacy policy and/or terms of use of your website.

It is essential that the Consent Banner is simply designed to ensure that your users easily understand the information and can readily express their consent or refusal.

5 Tools for Cookie Consent

As you might have noticed by now, there's a lot to consider with Cookie Consent. If you want to make your life a little easier, take a look at our category for Consent Management Platforms on OMR Reviews. Here, you'll find numerous tools and software that allow you to manage your users' consent easily and without complication. We've already selected five popular providers for you:

• Borlabs Cookie

• Usercentrics Cookiebot CMP

• OneTrust

• Osano

• consentmanager

Conclusion

Cookie Consent is an important topic for webmasters. The legal foundations are complex, and there are many different types of cookies that can be used. A compliantly set up Cookie Banner is therefore indispensable to provide users with a transparent information base. As a webmaster, you should take this matter very seriously to avoid legal consequences and to gain your users' trust. The basic rule here is: Be a responsible Webmaster and act in the interest of your users!