The European Commission recently proposed a draft regulation intended to streamline the process for obtaining consent for online tracking on EU websites. Currently, Article 5.3 of Directive 2009/136/EC requires that websites in the EU that engage in passive tracking must obtain affirmative consent before setting non-necessary cookies on users’ computers, as we have written previously. Member State implementation of the so-called “Cookie Directive” varies, but most require companies to have a banner notifying users of cookies. Many then permit inferred consent if a user closes the banner. This banner process has been widely criticized.

Under the proposed regulation, consent can “be expressed by using the appropriate technical settings of a software application enabling access to the internet” i.e., browser settings. The Commission has proposed this change to ease the “overload of consent requests for internet users.” In a press release accompanying the proposal, the EC urged the European Parliament and European Council to act swiftly in considering the regulation. The EC hopes to have the law implemented in tandem with the General Data Protection Regulation (GDPR) in May 2018.

TIP: Until the regulation passes and goes into effect, banners remain the default for cookie consent in European Member States. Post-May 2018 this regulation might ease the burden on companies, who may now want to begin exploring whether their websites are set up to respect user’s cookie-related browser settings.