Although this is only an opinion, the position of the general advocate is generally followed by the Conseil d’Etat. However, it would be very surprising the Administrative Court do so in this case. The decision, expected very soon, is nonotheless eagerly awaited given the impact it could have on the Data Protection Authorities position throughout the European Union.
At a hearing before the Conseil d’Etat, on 12 June 2020 (the CNIL vs. organisations representing the media, advertising and online business industry (le Geste, le Fevad, l’IAB, le Syndicat des régies Internet…)), the General Advocate shared his position regarding the validity of cookies wall (i.e. access to website content granted on condition that users consent to advertising cookies).
The position of the CNIL and the European Data Protection Board, which recently updated its recommendation on consent in order to clarify its position on cookies wall (see here), is that access to the contents of a website cannot be conditional on the acceptance of advertising cookies.
The main reason is that consent, to be valid, must be freely given and, as the GDPR provides for, this cannot be the case if the provision of a service, for which processing is not necessary, is conditional on such consent.
The position of the Advocate General
According to the newspaper Les Echos, the Advocate General would disagree with the position of the CNIL and the European authorities, arguing that consent, even if conditional, could be valid (i.e. freely given) insofar as the users had the choice of browsing other websites providing similar content.
It seems unlikely to us that the French Administrative Court will follow the position of the Advocate General as reported by the newspaper “Les Echos” for the following reasons:
– The GDPR provides that, when determining whether consent is freely given, the utmost account should be taken as to whether, inter alia, the performance of a contract, including the provision of a service, is subject to consent to the processing of personal data which is not necessary for the performance of that contract.
Besides, the GDPR also provides that consent shall be presumed not to have been freely given (…) if the performance of a contract, including the provision of a service, is subject to consent despite the fact that such consent is not necessary for the performance of the contract.
As the use of advertising cookies is not necessary for the provision of free online content, users’ consent is unlikely to be considered freely given if, in the event of refusal, access to the content is denied.
– If the existence of other websites providing similar content were considered as a valid alternative, we would expect that the Conseil d’Etat requires the publisher to be able to prove that at least another website offers similar content without requiring the acceptance of cookies and/or provide such alternative (e.g. link to these cookies free websites).
However, if this position became a precedent, it would be of no practical interest insofar as most publishers would set up cookies walls, which would reduce the likelihood that such an alternative exists and, in any event, it is unlikely publishers want to redirect their users to other cookies free websites.
Although this seems unlikely, if the Conseil d’Etat chooses to validate the position of the Advocate General, it will surely be subject to additional conditions that will make the decision much less appealing to online advertisers and content publishers.
As the business model of the Internet is based on online targeted advertising, the decision of the Conseil d’Etat is nonetheless eagerly awaited.