Are cookie banners indeed compliant with the law? Deciphering EU legal requirements on consent and technical means to verify compliance of cookie banners

Abstract

In this work, we analyze the legal requirements on how cookie banners are supposed to be implemented to be fully compliant with the e-Privacy Directive and the General Data Protection Regulation. Our contribution resides in the definition of seventeen operational and fine-grained requirements on cookie banner design that are legally compliant, and moreover, we define whether and when the verification of compliance of each requirement is technically feasible. The definition of requirements emerges from a joint interdisciplinary analysis composed of lawyers and computer scientists in the domain of web tracking technologies. As such, while some requirements are provided by explicitly codified legal sources, others result from the domain-expertise of computer scientists. In our work, we match each requirement against existing cookie banners design of websites. For each requirement, we exemplify with compliant and non-compliant cookie banners. As an outcome of a technical assessment, we verify per requirement if technical (with computer science tools) or manual (with any human operator) verification is needed to assess compliance of consent and we also show which requirements are impossible to verify with certainty in the current architecture of the Web. For example, we explain how the requirement for revocable consent could be implemented in practice: when consent is revoked, the publisher should delete the consent cookie and communicate the withdrawal to all third parties who have previously received consent. With this approach we aim to support practically-minded parties (compliance officers, regulators, researchers, and computer scientists) to assess compliance and detect violations in cookie banner design and implementation, specially under the current revision of the European Union e-Privacy framework.