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Whenever you visit a website for the first time these days, a window inevitably pops up. At the top it says: “Can we ask for your consent?” or “We want to give you the best user experience!” – Below or next to it, an “accept” button and several lowercase notes on how users can exercise their data rights. If you want to object to the disclosure of your data, you often have to click to make your way through a confusing maze of buttons, hidden options, and links to really find all uses of the data. If you just click out of the dialog, you usually have to live with the fact that the website sets dozens or even more than 100 cookies. If, on the other hand, you generally refuse cookies via your browser settings, the consent dialogs will be displayed multiple times.
There are two main reasons for this new wave of banners. On the one hand, in May the Federal Court of Justice put an end to the special German path that allowed German website operators to save cookies on users’ devices without this being required, contrary to the European e-privacy directive. Secondly, following new data protection laws in Europe and California, the advertising industry has agreed on a new standard to ensure that data usage continues to comply with the law. The “Transparency & Consent Framework” is now available in version 2.0 and has been widely accepted, also because Google supports the framework. Consequence: Anyone trying to do without this cookie banner today will be rejected by most advertising networks.
No consent, no cookies?
What is it specifically about? Cookies are actually almost 30 years old web technology that allows you to save default settings in your browser. The server sends a short text string to the browser, which is saved as a cookie. If you visit the same website again, the web server asks which cookies have been set and the text string is returned.
This text string can be a postcode, for example, so that the forecast for your place of residence is always displayed on a weather service website. The text string can also contain a unique identifier so you don’t have to log in every time you visit. Thanks to cookies, the shopping cart in the online shop is still full the next day, cookies can be used to save language preferences for websites or to find searched content with just a few clicks.
But cookies are also a core technology behind personalized advertising. For example, anyone who calls up a website not only receives cookies from a publisher, but usually also cookies from many advertising networks, which use them to track user activity across the network. With completed user profiles, users can be presented with targeted offers. With retargeting, for example, users are shown ads for products they have previously viewed in an online store but have not purchased. In order to be able to reproduce almost all ads in a targeted manner, the advertising industry collects comprehensive profiles that store all the information relevant to advertising in a profile, from age, place of residence and income to interests and hobbies.
Tracker and not tracker
In addition to advertising cookies, there are also a number of cookies that users do not track across the web. For example, the statistics scripts use cookies to try to consolidate visitor statistics. This way, operators keep track of how many users are actually on the website and what path they are taking. Another example of non-tracking cookies are those of VG Wort, which are displayed on the websites of many publishing houses in order to allow the assignment of annual royalties to authors, but not to create cross-offer user profiles.
Cookie banners are not just about cookies, but about many types of data processing. For example, advertisers want to prevent their ads from appearing alongside unsuitable content, so vendors who specialize in “brand safety” ask which item an ad is shown. If such scripts are rejected, many advertisers will not want to advertise. Cookies also record how often a certain ad is shown – after all, advertisers don’t want to spend too much on the same user. Website operators looking to get reasonable prices in real-time programmatic advertising markets need to provide a lot of data.
Whoever runs a website and wants to make money from advertising therefore has a clear goal: users should give their consent to data processing as often as possible. If users refuse, rapid loss of revenue is usually hard to avoid: even though websites are still able to deliver certain ads to users without tracking, these banners are paid much less. And even at reduced prices, the data-hungry advertising industry usually doesn’t provide enough advertising – if users reject all cookies, many ad spaces usually remain empty.
Pushed for approval
The result is accordingly: there are many traders doing their best to allow users to make an informed choice. However, many cookie banners appear intentionally intended to confuse the user. The approval buttons are highlighted in color, but the opt-out options are kept simple and ambiguous.
In recently published information, the Lower Saxony data supervisory authority warns against such practices. “Nudging” is an attempt to get users to agree. Privacy advocates try to understand exactly where the limits are. “What is certain is that there are limits to allowed nudging and that agreements that manipulate behavior can lead to the ineffectiveness of consent,” says the Hanoverian recommendations. Under no circumstances should you rely on the default settings for the consent tools available on the market, which manage the processing of cookies for the site operator. A so-called cookie wall, in which users are excluded from content if they do not consent to cookies, is also incompatible with the General Data Protection Regulation. Data protection authorities across Germany are currently examining the practice of cookie banners.
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