The European Data Protection Board (EDPB) has updated its Guidelines on GDPR consent to clarify that making access to a website conditional on accepting cookies – so-called “cookie walls” – does not constitute valid consent and that scrolling or swiping through a webpage cannot constitute consent either, under any circumstances.
Updated Guidelines
“Guidelines on consent under Regulation 2016/679” were first published in November 2017 by the EDPB’s predecessor, the Article 29 Working Party, and formally adopted in April 2018. The EDPB has now produced a slightly updated version of those Guidelines which, apart from two important clarifications, essentially remain the same. The clarifications appear in the sections of the Guidelines on “Conditionality” and “Unambiguous indication of wishes” and concern, respectively, the validity of consent provided by individuals when interacting with “cookie walls” and the question of scrolling or swiping through a webpage or similar user activity to indicate consent.
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The use of artificial intelligence and surveillance technology of various kinds is increasingly being used as a weapon in the fight against coronavirus around the world. Recent examples include the use of facial recognition software in Russia to enforce lockdown restrictions, while in France monitoring software has apparently been trialed with a view to using video surveillance cameras once lockdown has been moderated to determine whether citizens are adhering to social distancing rules and wearing masks.
In an interesting data protection case, Elgizouli (Appellant) v Secretary of State for the Home Department (Respondent) [2020] UKSC 10, the UK Supreme Court has held that the UK Government breached data protection laws in passing information to US authorities following a mutual legal assistance (MLA) request that could involve the US seeking the death penalty for two men. The men are alleged to have been members of a terrorist group operating in Syria involved in the torture and murder of hostages.
