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EU top court rules that active consent is needed for non-essential cookies, like tracking cookies for targeted ads, rendering pre-checked consent boxes illegal

Europe's top court has ruled that pre-checked consent boxes for dropping cookies are not legally valid.

TechCrunch Natasha Lomas

Context & Ripple Effects

This ruling lands three months after the same court held that sites with embedded Facebook Like buttons are responsible for the data those widgets collect, extending liability for third-party tracking from social plugins to cookies. Together the two judgments make the site operator — not the adtech vendor — the party on the hook for consent.

It also sets the legal benchmark that later coverage tested: a 2020 study found most EU consent forms still use pre-ticked boxes and buried reject options, and the European Data Protection Board followed with guidelines treating scrolling and cookie walls as equally invalid consent. The court has now defined the standard the industry is visibly failing to meet.

First-order effects

  • Every EU-facing publisher running pre-checked cookie boxes must re-engineer its consent flow immediately, since the ruling makes those boxes legally void rather than merely bad practice.
  • Adtech vendors and networks lose the pre-ticked default that inflated consent rates, so tracking cookies for targeted advertising now require a genuine affirmative click before any data drops.

Second-order effects

  • Publishers face a consent-rate drop on non-essential cookies, pressuring ad revenue models that assumed broad opt-in and pushing sites toward contextual advertising or consent-pay walls.
  • Consent management platforms become the compliance bottleneck: with the court and later the EDPB tightening what counts as consent, vendors compete on auditable opt-in flows rather than banner placement.

Third-order effects

  • The ruling hardens a liability chain that runs from the site operator down to the adtech layer — a trajectory that culminates in the Belgian court's finding that the industry-wide Transparency & Consent Framework itself is illegal across Europe, used by Google, Microsoft, Amazon, and X.
  • If regulators keep invalidating consent shortcuts, Europe's targeted-ad ecosystem shifts structurally from implied-by-default consent to explicit, logged, per-purpose permission — raising compliance costs and favoring platforms that can absorb them.

The trend: European courts and regulators are progressively invalidating every consent shortcut in online tracking — pre-ticked boxes, cookie walls, industry frameworks — pushing adtech toward explicit, operator-borne consent.

Discussion

  • @alexanderhanff Alexander Hanff on x
    at here refreshing Curia press release page & noticed their own non-compliant #cookie notice - spot the irony on their cookie information page - looks like the Court are about to render their own site illegal wrt to pre-ticked boxes... a little embarrassing... #privacy #planet49 …
  • @lukolejnik Lukasz Olejnik on x
    Full text of the CJEU cookie ruling improves understanding of #GDPR consent. Preselected fields make it impossible to detect if user consented. #ePrivacy http://curia.europa.eu/...
  • @mikarv Michael Veale on x
    The most interesting thing is how the Court justifies that info on cookie duration/those who can access should be provided. ePrivacy refers to data protection law on the information provided, but as ePrivacy is not always about personal data, the info reqs in DP don't always fit
  • @lukolejnik Lukasz Olejnik on x
    Web identifiers (like cookies) require active user consent. Pre-ticked consent boxes are invalid. #GDPR #ePrivacy https://curia.europa.eu/... pic.twitter.com/Zyjicbn70f
  • @lukolejnik Lukasz Olejnik on x
    What's more interesting: sites must inform about the duration of cookie validity. This is interesting insight, and was not generally followed. Should be identical to ‘Expires’ or ‘Max-Age’ setting when cookies are set. Does it also apply to SameSite configuration? #GDPR #ePrivacy…
  • @accessnow @accessnow on x
    Today's decision of the EU Court of Justice in the case #Planet49 is a message to the #adtech industry: your business model based on unlawful profiling, forced tracking and unconsented targeted ads is not valid under EU law #ePrivacy http://curia.europa.eu/...
  • @mikarv Michael Veale on x
    Firstly, unlike the AG, the Court expressly says that because they were not asked about bundling services (e.g. tracking walls, conditional/coerced consent), they will no comment on it. pic.twitter.com/fsuyuWQUHC