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Cookie wall returns
The Dutch Authority for Consumers and Markets (ACM) actively started enforcing the new cookie provisions legal framework. A number of websites re-installed their cookie wall after receiving a letter from the ACM, according to reports by Geen Stijl and Tweakers.net (Dutch publishing company De Persgroep). It is (not yet) known which other specific websites did also receive a similar notice of the ACM.
Background
In 2012 and 2013 website owners started to use cookie walls to meet the applicable regulations which stipulated that the user must explicitly give its consent for the use of cookies. The walls were removed after a public letter of the Dutch Ministry of Economic Affairs in which it emphasized that it was unnecessary to explicitly request for permission, a simple cookie notification would suffice. Now these same websites act in conflict with the law, according to the ACM.
Since 10 March 2015 the new cookie provisions apply (see our earlier article from 12 March). These provisions are designed to solve the ongoing problems and nuisances caused by the previous cookie provisions, such as the redundant use of cookie walls.
Because of the uncertainty about the scope of the cookie provisions the ACM was somewhat reluctant with regard to enforcement. Recently however, the ACM seems very actively engaged in warning website proprietors because it suspects them of infringing the cookie provisions. These warnings apparently were enough for the proprietors to introduce the cookie wall again.
Current legal framework
Under the current cookie provisions it is authorised to use cookies with no or limited impact on the privacy of users, such as analytical cookies and affiliate cookies, which are necessary for the use of the website or the collection of statistical data.
However it is not permitted to use tracking cookies without the prior consent of the user. When a website uses such cookies (consciously or unconsciously through the content of third parties) it must request the users permission prior to entering the website. Applying tracking cookies with the first page view by only entering the URL is not allowed. It seemed a lot of websites used tracking cookies without the prior consent of the user.
The current provisions do allow the use of cookie walls, with exception of government websites. Those websites should be freely accessible without prior consent as a conditon for entring the website.
The cookie wall will not return on the websites of the Dutch Broadcasting Company (NPO), which claims it has found another way to meet the cookie provisions. Before their cookie policy was not meeting the requirements. Now they have adapted their policy in a way that cookies will only be installed when the user clicks through the website. Thus, the user has the option to leave the website after entering the website for the first time without being confronted with cookies. Anyone who does want to click through the website without receiving cookies has the option to indicate this on their first visit. However, on June 2nd parliamentary questions regarding this method were submitted to the Minister of Economic Affairs because the NPO's website cannot actually be used without accepting cookies.
Duty of care for proprietors
Website owners are more or less forced to actively examine if they comply with the cookie rules. If a website (perhaps through content from third parties) nevertheless places tracking cookies, the cookie policy should be adjusted. If not, the proprietor risks a fine which can reach up to € 450.000 per violation.