French cookie case: will cookie walls be allowed soon? 

Several supervisory authorities, including the Belgian, Dutch and French have already stated in the past that cookie walls are not allowed. However, in a cookie case before the French Council of State (Conseil d’État), between the CNIL (the French supervisory authority) and a number of media companies, the French Auditor is of the opinion that cookie walls should be allowed. The judgment will follow shortly.

1. Cookie walls prohibited

In our annual overview of the GDPR, we had already mentioned that in the meantime almost all supervisory authorities had declared a cookie wall to be illegal. A cookie wall means that a website can only be used if all cookies are accepted by the visitor, including marketing cookies for example. 

Website owners need to rely on the visitor's consent to place non-essential cookies, but this consent must meet the requirements of the GDPR, i.e. freely given, specific, informed and unambiguous consent. If a visitor is unable to consult the website without consenting to non-essential cookies, this will be regarded by various supervisory authorities as a not freely given consent. Hence, that consent would be invalid.

2. Still allowed?

A cookie case is pending before the French Council of State between the CNIL and a number of media companies. In that case, the French Auditor is of the opinion that cookie walls should be allowed because the visitor has the possibility not to visit the website with the cookie wall. Indeed, the visitor would also be able to visit a website without a cookie wall. The auditor referred to the economic importance of the use of cookies. 

In any case, the opinion of the auditor is not binding on the Council of State.  

The judgment will follow shortly. We'll keep you informed.