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Cookies & plotters: what does the law say?

In application of the European directive called “telecom package”, Internet users must be informed and give their consent prior to the insertion of tracers. They must have the option to choose not to be traced when they visit a site or use an application. Publishers therefore have the obligation to seek prior consent from users. This consent is valid for a maximum of 13 months. Some tracers, however, are exempt from the collection of this consent.

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What does the term “cookies” or “tracers” cover?

Concerned tracers filed and read for example when consulting a website, reading an email, installing or using a software or a mobile application and this, regardless of the type of terminal used such as a computer, a smartphone, a digital reader and a video game console connected to the Internet. If they meet certain conditions, some tracers derogate from this obligation

As such, the term “cookie” covers for example:

HTTP cookies
cookies “flash”,
the result of the fingerprinting calculation in the case of “fingerprinting” (calculation of a unique identifier of the machine based on elements of its configuration for tracing purposes),
the invisible pixels or “web bugs”,
any other identifier generated by a software or operating system, for example.

These obligations apply whether cookies collect personal data or not.

WHAT THE LAW SAYS ?

By amending Article 5 (3) of Directive 2002/58 / EC by adopting Directive 2009/136 / EC, the European legislator has laid down the principle:

prior consent of the user before storing information on a user’s equipment or accessing information already stored.
except, if these actions are strictly necessary for the issuance of an information society service expressly requested by the subscriber or the user.

Article 32-II of the Act of 6 January 1978 , as amended by Ordinance No. 2011-1012 of 24 August 2011 which transposed Directive 2009/136 / EC, incorporates this principle.

In application of the law and freedoms, tracers (cookies or others) requiring a collection of consent can not be deposited or read on his terminal, as long as the person has not given his consent.

Who does this obligation impose on?

Which cookies require the prior consent of users?

The case of cookies for audience measurement solutions (analytics)

How to validly collect consent?

The lifetimes of cookies

The consent to be followed may be forgotten by those who have shown it at a given moment, the CNIL considers it necessary to limit the scope of the latter in time.

It recommends that the period of validity of the consent to the deposit of Cookies be increased to a maximum of 13 months. At the end of this period, the consent will have to be collected again.
As a result, cookies must have a limited lifespan of thirteen months after their first deposit in the terminal equipment of the user (following the expression of the consent)
their lifespan should not be extended during new visits to the site.

13 months
This is the maximum lifetime of a cookie

In concrete terms, how to comply?

In the first step, the user who goes to a publisher’s site (home page or secondary page of the site) must be informed, by the appearance of a banner:

precise purposes of the cookies used;
the ability to oppose these cookies and change the settings by clicking on a link in the banner;
the fact that the continuation of its navigation is agree to the deposit of cookies on its terminal.

For example, when using tracers for advertising and audience measurement purposes, the following may be used:

Sample information banner template

Here is a template to use for advertising and audience measurement cookies. It must be adapted according to the purpose of the cookies used.

By pursuing your navigation on this site, you accept the use of [Cookies or other tracers] to propose you [For example, targeted advertisements adapted to your interests] and [For example, to carry out statistics of visits].

Learn more and set tracers .

To the extent that the consent must not be ambiguous, this banner must not disappear until the person has continued his navigation, that is to say, as long as he did not go to another page of the site or did not click on an element of the site (image, link, button “to search”).

Without prior consent of the user, the deposit and reading of Cookies must not be made:

if the user goes to the site (home page or directly on another page of the site from a search engine for example) and does not continue navigation: a mere lack of action can not be in effect assimilated to a manifestation of will;
if he clicks on the link in the banner allowing him to set cookies and, if necessary, refuses the deposit of cookies.

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