Cookie Wall & Paywall ' Do's And Don'ts

• Published date: 17 June 2022
• Subject Matter: Media, Telecoms, IT, Entertainment, IT and Internet, Advertising, Marketing & Branding
• Law Firm: Global Advertising Lawyers Alliance (GALA)
• Author: Ms Caroline Bouvier (Bernard - Hertz - Béjot)

Is a website's editor able to block access to the Internet user who rejects the storage of cookies or other tracking tools? Is the website's editor allowed to require the Internet user, as an alternate solution, to make a payment?

The French Data Protection Agency (CNIL) has recently issued Guidelines to set forth the main principles to be complied with by a website's editor who intends to use Cookie Wall and Paywall.

The use of cookies or tracking tools - the applicable rules

The use of tracking tools is prohibited unless the processing of data can be based on a legal exemption. As a result, only consent and legitimate interests can legitimize the use.

An exemption from the consent requirement is made for technical storage that is strictly necessary to provide the website service explicitly requested by the user of a website (e.g., cookies which are stored for the provision of a shopping cart function).

The cookies which are used in the context of tracking and analysis tools are not necessary for the operation of the website, and therefore require a consent from the Internet user.

What is a Cookie Wall? What is a Paywall?

A Cookie Wall aims at blocking the access to the content of a website for Internet users who do not accept the storage of cookies, or the reading of cookies already implemented by the website's editor. Usually, a banner featured on the home page allows the Internet user to click on the "I accept cookies" button. Otherwise, the access to the content of the website is impossible.

Some websites have resorted, in case cookies/tracking tools are rejected by the Internet users, to the implementation of Paywall which is a method of restricting access to content, with a purchase or a paid subscription (especially news or weather forecasts). By doing so, the editors of these websites seek to compensate the loss of advertising revenues because of the lack of use of tracking tools.

On June 19, 2020, the Conseil d'Etat (French Supreme administrative court) held that the "prior-consent" rule does not lead per se to a total ban of Cookie Walls; according to the Conseil d'Etat, the freedom of consent of the data subject must be assessed on a case-by-case basis, in particular in light of the existence of a real satisfactory alternate solution offered by the website's editor in the event cookies/tracking technologies are rejected by the data subject.

The CNIL has been regularly questioned about the legality of Cookies Wall and Paywall. It has recently...