Introduction
In an era increasingly dominated by digitalization, the imperative of user privacy and effective data management has assumed unprecedented significance. However, amidst this heightened awareness, a plethora of misconceptions, urban myths, and misinformation have also proliferated.
In this article, we endeavor to scrutinize two pivotal and contentious topics of contemporary discourse: the Cookie Consent Registry and the Cookie Banner. On one front, there persists a lingering misconception that maintaining a cookie consent log is obligatory, perpetuated by erroneous or misleading information. Conversely, the landscape is muddied by widespread confusion surrounding cookie banners, as numerous websites fail to adhere to official directives regarding their functionality and requisite buttons.
Let us equip ourselves with verifiable truths, dispel fallacies, and strive for lucidity on these subjects, thereby empowering our navigation through the vast expanse of the digital realm with greater assurance.
What is the Cookie Consent Registry?
The "Cookie Consent Registry" is a term frequently encountered in discussions surrounding online privacy and GDPR compliance. It is commonly portrayed as a database that records users' preferences regarding the utilization of cookies on a website.
This concept has gained widespread traction to the extent that many website proprietors and users, often influenced by ambiguous and potentially biased communications, have come to believe that possessing such a registry is a legal obligation.
The questions naturally arise: "Is it necessary? Must I then bear an additional expense on top of what I already invest in privacy compliance? What constitutes a reasonable cost for this tool?" These inquiries frequently arise in discussions on this subject.
The misconception that the Cookie Consent Registry is obligatory has led to considerable confusion among users and website owners alike, with many still under the impression that such a registry is a legal prerequisite. However, the reality diverges significantly from this perception.
Why the confusion?
Myths and beliefs: the factory of false truths
Undoubtedly, a primary contributor to the perplexity surrounding the cookie consent log is the GDPR's stipulation that consent must be "documented." It is this particular term that, in our assessment, has engendered much of the ambiguity.
This confusion is further compounded and frequently exacerbated by entities with vested commercial interests, who exploit the situation to disseminate misinformation.
For instance, certain companies providing privacy compliance services accentuate the purported "requirement" for a cookie processing log as an integral component of their offered solutions, consequently levying supplementary charges on end consumers.
Fear as a marketing tool
Indeed, this fear-driven tactic exploits the legal ambiguity and the intricate nature of privacy regulations, compelling website owners to believe that maintaining a cookie consent log is their only shield against severe penalties. By intentionally blurring the distinction between consent for newsletters and consent for cookies and citing rulings and provisions understood mainly by insiders, it instills a sense of urgency and necessity.
This sense of fear and urgency often prompts hasty and, more importantly, unnecessary decisions that can prove counterproductive in the long run.
Misinformation does not help
Blog articles, social media posts, and even webinars hosted by influential entities in the field may disseminate misleading, incomplete, or convoluted information, especially concerning terms like "documented" in the GDPR. This can create the false impression that maintaining a cookie consent log is a universally mandated and indispensable practice, when in reality, it is not.
The domino effect
Furthermore, once these myths gain traction, a domino effect ensues. Other websites and information sources start echoing the same misinformation, exacerbating the challenge of distinguishing between fact and fiction. This self-perpetuating cycle of misinformation only strengthens the erroneous belief that a Cookie Consent Registry is obligatory.
This is the crux of the issue and the root cause behind the widespread misconception that a website is non-compliant without a Cookie Consent Log.
The truth about the cookie register: let's expose the illusions
It's crucial to emphasize and reaffirm the reality: there is no mandate to implement a Cookie Consent Registry. This point deserves repetition and unequivocal clarification, considering the abundance of misinformation surrounding this topic. Consent merely requires documentation, and this documentation can be accomplished through a straightforward technical cookie.
What does the Privacy Guarantor say?
The official guidelines, contrary to what one might think, are clear: while it is necessary to obtain users' consent for the use of cookies or third-party software, there is no specification requiring the creation and maintenance of a separate record to document such consent.
As we shall then see in a moment, adopting a registry, on the contrary, can expose you to great risks.
The GDPR and the Documentation of Consent. Is Cookie Consent Registry mandatory? NO
Even the European Union's General Data Protection Regulation (GDPR), which is the law of reference for the protection of personal data, does not mention a requirement for a consent register or marketing or even cookies. The GDPR requires consent to be "free, specific, informed, and unambiguous," but does not mandate the need for a registry to document these choices. It imposes on the holder the need to prove that he or she has received such consent, but there are many ways to fulfill this requirement.
How to fulfill the legal requirement to document cookie consent?
Simplicity, as is often the case, is key: a technical cookie, for example, is more than sufficient to document user consent, making the use of a separate log unnecessary.
Why the registry can be very risky
The reality, grounded in legislation, suggests that maintaining a Cookie Consent Registry may pose more costs and risks than benefits.
Firstly, there's the complexity and time, or financial resources, required to operate such a system. This burden can be particularly onerous for small websites.
Secondly, a poorly designed or inadequately managed registry, especially if hosted on external servers by third-party service providers, can expose websites to various legal risks, including the potential theft of sensitive data or the repercussions of a data breach.
Moreover, there's no legal requirement to chronicle visitors' cookie acceptance or rejection patterns over time, nor to track how these preferences evolve. Such data collection exceeds the scope of legal mandates and could constitute unlawful processing. Therefore, maintaining a searchable record of cookies could expose websites to unnecessary legal risks. Why risk regulatory non-compliance for an unnecessary practice?
So what is necessary to do? What does the legislation stipulate when it comes to cookie registries?
As previously highlighted, a significant factor fueling confusion surrounding the cookie consent log is the GDPR's directive to "document" users' consent. This has led numerous webmasters to erroneously assume that a registry is indispensable for fulfilling this obligation.
In reality, a straightforward technical cookie capable of recording user choices suffices to document consent in a manner compliant with privacy regulations.
The Position of My Agile Privacy
"My Agile Privacy takes a resolute stance on this matter. In accordance with existing regulations, we categorically exclude the inclusion of a cookie consent log in our service, both now and in the future.
Our commitment is to adhere rigorously to the guidelines set forth by the Garante, ensuring utmost compliance with regulatory standards. We prioritize the principle of data minimization, meaning we refrain from storing unnecessary data.
"I have seen that some companies offer a tool that is not the cookie log, but allows me to access the list of IP addresses associated with accepted cookies. Is this okay?"
No, this practice does not comply with privacy regulations and can expose your company to the same risks as maintaining an actual cookie log. Offering facilitated access to IP addresses or user preferences is not permitted, as it would allow access to personal data (such as IP address) of users without any legal basis for doing so.
"Some companies offer cookie log or similar services, hosted on their servers. Am I more protected in this case?"
No, external hosting does not provide greater protection. You are still subject to data breach. You also allow the third-party company access to your users' personal information, as it is hosted on its servers, so you should also take care of the whole part of appointing the external data controller, which is too often forgotten or ignored.
"If I don't use a cookie consent log, how can I document users' consent?"
A technical cookie is more than sufficient to document users' consent to the use of profiling cookies, as indicated by the Privacy Guarantor's Guidelines.
The confusion lies precisely in the term "document," which leads one to think of the need for a registry. The relevant bodies, during verification, are fully capable of noting the proper technical operation of the banner cookie you use, and understanding the use of the technical cookie as a tool for saving user preferences.
"Does using a cookie consent log make me more compliant with the law?"
No, a cookie consent log is not required by privacy regulations and may in fact expose your company to unnecessary risks, such as data breaches and subsequent legal action.
"I understand, but nevertheless I still want to have a cookie consent log. Do I solve or eliminate data breach issues and risks if I host it on my hosting?"
Hosting a cookie consent log on your own hosting infrastructure does not absolve you from the risks associated with a potential data breach. In fact, it may heighten your liability in the event of such an incident.
Effective management of personal data necessitates stringent security measures irrespective of its location.
It's essential to recognize that the privacy landscape operates on distinct principles, diverging from domains like marketing, where offering additional services or features is often perceived positively. In the realm of privacy, the aim is to provide precisely what regulations demand—no more and no less. Offering superfluous features exposes both you and your clients to unwarranted risks without any tangible benefits.
Therefore, if a cookie consent log is not explicitly mandated, it's prudent to forgo its implementation altogether.
We talked about the Cookie registry. What about the cookie banner?
The cookie banner serves as the initial visual element encountered by users upon visiting a website. Its significance extends beyond legal compliance, encompassing transparency and trust-building with visitors—a veritable bastion in this digital age.
However, all too frequently, attention is disproportionately directed towards aesthetics, overlooking an equally critical consideration: does the banner not only appear visually appealing but also ensure site compliance? Neglecting this aspect may inadvertently expose the website to potential issues.
To ensure your cookie banner is compliant, it's imperative to understand the following essentials.
Buttons: Clarity first
An effective and above all compliant cookie banner must have four clearly visible and intuitive buttons: "Accept," "Reject," "Customize," and the classic "X" to close the banner. Each button has a specific role:
Accept: By clicking this button, you give consent to the use of all cookies.
Reject: This option allows the user to browse without the use of non-essential cookies.
Customize: Offers the user the ability to choose which cookies to accept and which to reject.
X: Closing the "X" banner is considered a "no choice," and cookies must remain blocked.
If your cookie banner doesn't have these 4 buttons, be wary and run immediately to change it.
Likewise, take into consideration the layout of these buttons and the graphic appearance they have. The graphic evidence of these commands should be equal and suitable so as not to favor or disfavor a specific choice.
Certain cookie banners offer only a semblance of compliance, but are attackable in several ways.
Granular consent, that is: the ability to choose
Granular consent represents a pivotal feature enabling users to meticulously determine which cookies to accept and which to reject, on an individual basis. It surpasses the rudimentary categorization of cookies into broad groups like "Marketing" or "Functionality," affording users the precise ability to make decisions on each cookie's acceptance.
This level of control and transparency aligns closely with regulatory requirements, facilitating compliance with data protection laws. It empowers users to exercise informed choice regarding their data privacy preferences.
This level of control and transparency precisely meets the standards mandated by regulations. Does your cookie banner provide this capability, or does it merely prompt users to accept all marketing cookies indiscriminately?
Prior blocking: consent must be explicit
The cookie banner MUST proactively block all third-party cookies and software until the user provides explicit consent.
If, upon page load and before any user choices are made, any cookies are stored that should be blocked instead, your cookie banner is non-compliant, and consequently, so is your site.
Ensure that all third-party cookies and software are preemptively blocked until the user accepts (all or part of) the cookies.
If not, immediate action is needed to update your cookie banner!
Scroll is not consensus: let's definitively dispel a myth
A persisting misconception is that simply scrolling down a webpage can serve as consent to the use of cookies. However this practice is no longer permissible and is not in alignment with prevailing privacy regulations.
Consent must be explicitly obtained through an affirmative action, such as clicking on one of the buttons presented in the cookie banner.
In conclusion
The issue of privacy and data protection has risen to prominence, yet misinformation often obscures reality, leading to suboptimal and potentially costly decisions, both in terms of finances and penalty risks.
In this article, we have endeavored to illuminate key aspects of online privacy still shrouded in debate and confusion: the cookie consent log and the essential features of a compliant cookie banner.
We debunked the pervasive myth regarding the obligatory nature of a cookie processing log, emphasizing that a technical cookie suffices to document user consent.
Furthermore, we outlined the indispensable features of a compliant cookie banner, including clearly visible buttons and granular consent—essential elements rather than optional add-ons.
At My Agile Privacy, we have consciously opted against offering a cookie consent log. Instead, we utilize technical cookies to store user settings, aligning with the recommendations of the Privacy Guarantor. This approach aims to maintain simplicity, sparing our clients from unnecessary costs and unwarranted risks.
Steps to follow now
The cornerstone of effective privacy management is access to accurate information.
Before making any decisions, it's imperative to ensure you are well-informed by consulting a reliable and authoritative source, such as The Privacy Guarantor, and thoroughly understand your available options. Your privacy is far too important to be left to chance or hearsay.
If you're seeking assurance that your website is compliant, click here to request a compliance audit. One of our experts will conduct a thorough analysis of your site, identifying any weaknesses in your cookie banner configuration and providing an assessment of your overall compliance status.
