What is Implied Cookie Consent? (What You Should Know)

Are you wondering what implied cookie consent is and how it affects your business? Well, you’re in luck because that’s exactly what we’ll cover in this article.

This article will cover the implications of implied cookie consent, its place within data protection and privacy laws, and its significance in the modern online environment.

Stay with us to understand the nuances businesses should consider when implementing this.

Let’s dive in.

Key Takeaways

Implied cookie consent is a method where businesses assume a consumer's agreement to cookie usage based on their actions, like continued browsing, rather than obtaining direct permission.
This consent model streamlines the user experience by eliminating repetitive prompts. However, it holds significant implications for data protection and consumer trust in the online landscape.
Non-compliance with cookie consent regulations can result in severe business penalties. It's crucial to discern between implied (assumed actions) and explicit consent (direct indication).

What is Implied Cookie Consent?

Unlike the direct approach of asking for a consumer's permission to deploy cookies, implied consent is inferred from specific actions a consumer takes on a website.

Alana Gibson, COO of DGR Legal, says:

"Implied cookie consent assumes user agreement through their continued site use. It's increasingly viewed as insufficient under strict privacy laws requiring explicit consent."

In other words, implied cookies may not be compliant depending on the applicable regulations, and even if they are compliant, they must be done in a specific way to ensure legally sound corporate compliance.

If a consumer continues to browse the site without actively rejecting cookies, the site assumes their consent. This method streamlines the experience by preventing constant or intrusive prompts.

Why does this matter? Well, the method a business uses to obtain cookie consent holds weight when talking about compliance.

Implied consent respects the idea that if consumers are informed about cookie usage - often via a cookie banner or notice - and choose to continue browsing, they've implicitly agreed to use cookies. It balances maintaining a smooth user experience and adhering to data privacy policy.

For instance, consider visiting a website and spotting a notice at the bottom mentioning the use of cookies.
This notice might read, "By continuing to use our site or scrolling, you agree to our use of cookies."
If a user scrolls down the page or clicks on another link without dismissing the notice, their action of scrolling or continuing to browse is taken as consent for cookie usage.

Discover how to efficiently outsource compliance to experts and streamline your business processes.

Confused about how to implement consent on your website? Get in touch for a 100% free consultation to learn how your company can become compliant.

Is Implied Cookie Consent Bad?

The use of implied cookie consent can tread a fine line. Its acceptability largely depends on the specific regulations of a region or country and the exact context in which it's applied.

From the perspective of streamlining the user experience, implied cookie consent can be beneficial. It eliminates repetitive prompts, allowing consumers to engage with the website seamlessly.

However, this approach might only sometimes align with stringent data protection regulations. For instance, in regions with a heavy emphasis on clear and unequivocal consent for personal information collection, relying solely on implied cookie consent could lead to non-compliance.

For example, the General Data Protection Regulation (GDPR) in the European Union highlights the need for "freely given, informed, specific and unambiguous" consent.

Under compliance frameworks like this, assuming consent through a mere continuation of browsing may not be sufficient. Learn more about the core GDPR principles that shape data protection in the EU.

Implied Cookie Consent vs Explicit Cookie Consent

How businesses acquire cookie consent is crucial to achieving a legal complaint framework. Currently, there are two dominant methods, also known as “ implied” and “explicit consent.” Each has its benefits and challenges, and the choice between them often depends on legal requirements and the desired user experience.

Let's delve deeper into the aspects of these two consent mechanisms:

Nature of Consent

Implied cookie consent operates under the assumption that users who continue specific actions on a website, like browsing or scrolling, agree to use cookies.

Explicit consent, on the other hand, necessitates a direct action, such as ticking a box or clicking an "accept" button, signaling the user's explicit agreement to cookie use.

Legal Compliance Implications

As hinted earlier, the choice between implied and explicit consent can have legal ramifications. Specific regulations, like the GDPR, mandate "clear and affirmative" consent, making implied consent potentially noncompliant in such jurisdictions.

Businesses must be acutely aware of regional regulations to ensure their chosen method aligns with legal expectations.

Transparency, Control, and User Choice

Explicit consent often offers a higher degree of transparency. Users are given clear choices about which cookies they'd like to accept, giving them more control over their personal information.

Implied consent, while less intrusive, can sometimes sideline these choices, potentially reducing transparency and user control.

User Experience

Implied consent can offer a smoother, uninterrupted user experience. The absence of persistent prompts or pop-ups allows users to engage with the content more fluidly.

Explicit consent, though ensuring clarity, might be seen by some users as an obstacle, especially if they encounter similar prompts across multiple sites.

Learn how to elevate your website visitors' user experience by adopting cookie consent best practices.

The choice between implied and explicit cookie consent revolves around a delicate balance of legal compliance, user experience, and data transparency. Businesses must weigh these factors against their unique circumstances to make an informed choice.

Want to properly implement consent on your website? Get in touch now for a complimentary consultation to learn how your company can become compliant.

Examples of Implied Cookie Consent & Their Validity

Implicit cookie consent methods, such as scrolling or navigation, vary across websites and legal jurisdictions in the digital landscape. Recognizing these practices and evaluating their legitimacy under different cookie laws is essential for legal compliance.

Let's delve into these examples of how you can obtain consent with implied cookie consent:

Consent by Scrolling

This method assumes that if a user scrolls down a webpage after seeing a cookie notice, they have given their consent for cookies to be deployed.

However, the acceptance of this method varies:

Under specific interpretations of the GDPR, consent by scrolling may not be viewed as a definitive, explicit affirmative action.
In contrast, countries like Italy and Spain have seen debates around the practice.

While neither has given a categorical green light to consent by scrolling, there have been instances where the practice is tolerated or not stringently opposed, making it a gray area in these jurisdictions.

Tip: It's best to stay updated with the latest cookie consent requirements across the applicable compliance frameworks to ensure you remain compliant.

Consent by Navigation

Under this practice, if a user continues to navigate through a website, moving from one page to another after being presented with a cookie notice, their continued navigation is seen as implied consent.

The validity of this practice also fluctuates. While the GDPR stresses explicit actions for consent, certain countries might have a more relaxed stance.
The Spanish data protection authority has implied that continuing navigation might be considered a valid consent form provided that adequate information is displayed and users can easily reject cookies.

However, businesses should tread carefully and remain updated on evolving interpretations.

Tip: Discover our compliance services and get a tailor-made and legally sound framework for your business looking to use implied cookie consent.

Other Examples

Beyond scrolling and navigation, other implied consent actions include staying on a page for a specified duration or interacting with certain elements. The validity of these methods remains in the grey area and depends on regional laws and their interpretations.

Implied cookie consent methods like scrolling or navigation might offer a streamlined user experience, but their acceptance under the law varies.

Penalties for Non-Compliance with Cookie Consent

Non-compliance with cookie consent regulations can seriously harm businesses. These penalties are given to ensure user data protection and to hold businesses accountable for their practices.

The GDPR is the most common data privacy law that applies to businesses operating within the European Union or dealing with EU citizens.

Non-compliance with GDPR's cookie consent provisions can result in fines of up to €20 million or 4% of the company's global annual turnover (selected based on whichever fine is higher).

Apart from GDPR, other jurisdictions also have their own set of penalties. For instance, in California, the California Consumer Privacy Act (CCPA) can impose fines on businesses that do not adequately inform users about cookie usage and obtain their consent. These fines can range up to $7,500 per intentional violation.

Apart from fines, non-compliance can also severely harm a business's reputation, leading to a loss of consumer trust. In an era where data privacy is highly valued, ensuring cookie consent compliance is a legal and ethical imperative for businesses.

Tip: When it comes to exemptions, strictly necessary cookies are typically exempt from cookie consent requirements.

FAQs

What is the primary difference between implied and explicit cookie consent?

Implied cookie consent assumes that a user's continued activity on a website, such as scrolling or navigating, indicates their consent to cookies. Explicit consent, on the other hand, requires direct action from the user, like ticking a box or clicking an "accept" button.

Is implied consent legally binding?

Implied consent can be legally binding in certain contexts and jurisdictions, but it depends on the specific situation. Consent is a complex issue in law, with its own set of regulations which may change based upon location or context.

For example, In terms of medical procedures/treatment decisions, implied consent could apply if you extend your arm to allow a nurse to take blood for tests - without any verbal communication involved.

In online usage (like website cookies), the GDPR mandates the need for "clear and affirmative" consent. This means that implied consent, such as continued use of a website after seeing cookie notifications, may not be enough to meet its standards. Instead, explicit agreement is required under this regulation.

It’s advised to always consult with legal professionals like Captain Compliance regarding these matters. Get in touch here.

How can businesses ensure they are compliant with GDPR regarding cookies?

Businesses should have a clear and accessible cookie policy, obtain clear consent from users before setting up non-essential cookies, and provide an easy way for users to change their consent preferences.

Check out our comprehensive guide on GDPR compliance best practices.

Are there any exemptions to cookie consent rules?

Yes, cookies that are essential for a website's functionality, also referred to as strictly necessary cookies, do not typically require consent. However, cookies used for tracking or advertising purposes generally do.

Learn more about how to comply with GDPR Cookie Consent.

How often should businesses review their cookie consent practices?

Given the evolving nature of data protection regulations and technological advancements, businesses should review their cookie consent practices at least annually or whenever there are significant changes to laws or their website's operations.

Explore our top 9 picks for cookie consent solutions.

How do you write implied cookie consent?

Implied consent is typically not written. It’s a form of consent that isn't explicitly granted by a person but instead inferred from a person's actions and the facts and circumstances.

Get in touch to learn how to make your consent compliant.

How Can Captain Compliance Help You?

With all this in mind, having a compliance expert like Captain Compliance by your side can help navigate complex topics like consent.

Captain Compliance and our team of superheroes can help you on this journey. With a suite of tools and resources designed specifically to address cookie consent issues, Captain Compliance can assist you in adhering to regulations and optimizing for user experience.

Contact us today for a complimentary consultation to learn how your company can become compliant.

Kiril Krastanoff