Why websites have to ask at all
Consent banners are widely seen as red tape from Brussels. Behind them sit two sets of rules from different decades, one court ruling, and one simple idea: the device belongs to the person in front of it.
The banners did not appear overnight. They are the result of two decades in which an initially unremarkable rule was read more and more strictly – until a court finally spelled out what "consent" actually means.
How a footnote turned into a banner requirement
- 2002The ePrivacy Directive first requires information about storing data on terminal equipment.
- 2009"Inform" becomes "obtain consent". Many countries implement it cautiously at first.
- 2018The GDPR applies and defines when consent is valid – freely given, informed, unambiguous.
- 2019In Planet 49 the Court of Justice rules: a pre-ticked box is not consent.
- 2021Germany writes it into section 25 TDDDG. Since then the duty is explicit in statute.
Two sets of rules, two different questions
The most common confusion in this whole field: the GDPR and ePrivacy do not regulate the same thing. They apply one after the other, and both have to be satisfied.
Access to the device and handling of the data
The idea underneath
Behind the complicated legal position sits an idea that needs no law degree: a computer, a phone, a television are private spaces. Leaving something there means entering someone else's territory – like putting a note inside another person's flat.
That the note is small and harms nobody changes nothing. Legally it therefore makes no difference whether a cookie holds "only" a number. What counts is who owns the device.
The duty to ask does not follow from the size of the intrusion, but from the fact that the device belongs to someone else.
Why the banners are so often bad anyway
The rule demands a question. It does not demand the nuisance many banners have become. Confusing buttons, hidden rejection and page-long lists are not a requirement of the law but a choice by the operator – and frequently one that is unlawful for that very reason.
A banner that makes accepting and refusing equally easy meets the requirements better and disappears faster. The supposed conflict between "compliant" and "pleasant" is usually no conflict at all.