Jurisdiction(s):
European Union

EDPB’s final EU ePrivacy Article 5(3) ‘cookie rule’ Guidelines: technical scope, technologies caught, consent requirements and Member State divergences

Published on: 12 November 2024

Published by a LexisNexis EU Law expert

Legal News

Article summary

On 7 October 2024, following a public consultation, the EDPB adopted the final version of ‘Guidelines 2/2023 on the technical scope of Article 5(3) of the ePrivacy Directive’—often referred to as the ‘cookie rule’ (the Guidelines). The authors previously reviewed the first draft in December 2023 (see News Analysis: EU—New EDPB guidelines on the scope of the ‘cookie rule’). Only limited differences separate that draft from the endorsed text. The EDPB still pursues an extremely expansive interpretation of the cookie rule, with most amendments simply providing clarification. This piece outlines the substance of the Guidelines and offers brief observations on their practical implications.

Background

It has long been accepted that conventional internet cookies engage the cookie rule. With newer tracking approaches—such as pixels, URL tracking and JavaScript code—emerging, the EDPB sought to dispel potential ambiguities. The Guidelines concentrate on a technical assessment of the scope of Article 5(3) of the ePrivacy Directive. They do not examine the circumstances in which an operation could fall within an exemption...

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