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Cookie obligations: what do I need to watch out for?

Do you run an e-shop or offer other services online through your website? And do you know your current cookie obligations? Recently, there has been a significant change in this area that should not be ignored.

počítač s přijatými soubory cookies
5 minutes of reading

Chapters of the article

What are cookies?

They are small text files that are stored in your browser. They allow websites to obtain information about a user’s activity each time they visit. If you’re reading this article on the web, you’ve probably already clicked on a cookie notification countless times on a website. And if you’re a website operator yourself, then cookies can help you collect useful data about your visitors. If the visitor comes back to you again, their browser will send the cookie back and you will get the information you previously stored about them.

In practice, cookies allow your website to remember, for example, language preferences (” preference cookies“) or to remember a customer when they move from one subpage of the website to another, while still storing the contents of their shopping basket (” function cookies“). Cookies are also used to store confirmation that the user is logged in, for example, in an e-shop or on a news website, so that the site does not require a login each time it is visited.

The principle of cookies makes it possible to distinguish the user and store specific information about him or her. They may therefore implicitly contain personal data and may indirectly fall under the GDPR.

Tip: If you collect other data about your customers, such as addresses or contacts, study up on data protection and GDPR, or consider a GDPR audit.

Cookies without risk

Measure twice, cut once. This is doubly true in e-commerce and those who do not measure can never succeed. However, if you still want to use cookies for analytics or marketing purposes for your online project after 1 January 2022, you will need to adjust your cookie settings.

Other practical uses of cookies

Cookies are very important for marketing strategists who can use them to find out in detail what visitors are interested in on a website, where they clicked and when they left. They can also see how many people have used a particular website feature or clicked on a link. In this case, we’re talking about analytics cookies.

Have you ever had your computer bombard you with ads for sleep supplements when you were suffering from insomnia? In such a situation, it is not necessary to think about conspiracies or Big Brother, but about cookies. Thanks to these small files that were saved just when you were on the web looking for a solution to your problem, contextual advertising can pop up at you from all sorts of websites. Marketing cookies are therefore used to better target ads.

The issue of cookies is regulated by the Electronic Communications Act, which deals generally with any technology that stores information on a user’s device. The current wording imposes an obligation to inform subscribers or users in advance of the scope and purpose of their processing.

Therefore, on the vast majority of websites, we encounter a bar or window informing us about the use of cookies. However, the text at the footer of the website can also provide basic information.

What changes have occurred in 2022?

There has been a significant change in this area since January 2022. This is primarily the user’s prior consent to the scope and purpose of the processing of personal information. Compared to the previous opt-out principle, the legislator has chosen an opt-in approach as the primary one.

This means that without explicit consent given by clicking a button on the bar, all of the aforementioned types of cookies cannot be activated and thus no information may be collected in this regard.

The visitor should be informed immediately on arrival at the website what information you wish to collect about them. Along with this, he or she should be given the opportunity to choose which information he or she wants to provide and which he or she does not. You must then respect his choice and not collect any other data.

Tip: the CJEU has previously commented on the need for active consent for the use of cookies. Read a short summary.

Rules for setting cookies

If you want your website to comply with current legislation, then please note the following rules:

  • You must be able to visit the website even if you have not consented to cookies.
  • The menu with cookies ticked should not be pre-populated. It is necessary to provide truly active consent.
  • If you offer the visitor the option to “accept all cookies”, there should be a reciprocal option to “refuse all cookies”.
  • The user must be given the option to close the menu bar without giving consent. Even in this case, the user should be able to continue browsing.
  • Consent should not be offered too aggressively – this means, in particular, aggressive bar pop-ups and highlighting the consent button in garish colours.

What needs to be done next?

In addition to the consent bar itself, you should have information about cookie processing within the site. The cookie bar may contain a link to it. The document should contain information about who you are, what types of cookies you work with and why, and what the user’s options and rights are in this regard (i.e. especially the ability to withdraw consent).

When does the obligation not apply to me?

Not all website operators are subject to the above obligations. If you have a simple website where you only provide information about your services and opening hours, you can rest easy. The new obligations apply to websites that collect data about their users from their end devices (mobile, tablet or computer).

Are you solving a similar problem?

Dostupný advokát team of online lawyers will solve it for you.

Cookies without risk

Measure twice, cut once. This is doubly true in e-commerce and those who do not measure can never succeed. However, if you still want to use cookies for analytics or marketing purposes for your online project after 1 January 2022, you will need to adjust your cookie settings.

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Author of the article

JUDr. Ondřej Preuss, Ph.D.

Ondřej is the attorney who came up with the idea of providing legal services online. He's been earning his living through legal services for more than 10 years. He especially likes to help clients who may have given up hope in solving their legal issues at work, for example with real estate transfers or copyright licenses.

Education
  • Law, Ph.D, Pf UK in Prague
  • Law, L’université Nancy-II, Nancy
  • Law, Master’s degree (Mgr.), Pf UK in Prague
  • International Territorial Studies (Bc.), FSV UK in Prague

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