Websites Ordered to Update Misleading Cookie Banners Following Complaints
The French Data Protection Authority (CNIL) has issued formal warnings to website publishers for employing misleading cookie banners, commonly referred to as "dark patterns." These practices manipulate users into consenting to cookies by making rejection difficult or confusing.
What Are Dark Patterns in Cookie Consent?
Dark patterns in cookie banners are manipulative design techniques that subtly steer users into decisions that benefit website owners such as consenting to the use of cookies while undermining user autonomy. These tactics are not just design choices, they are intentional strategies to influence behaviour, often at the expense of privacy.
Examples include:
Confusing consent flows: Users are bombarded with ambiguous options, making it unclear how to reject cookies.
Imbalanced visuals: Acceptance buttons are highlighted with bold colours and large fonts, while rejection options are hidden in smaller text or obscure links.
Misleading language: Labels like “I decline non-essential purposes” are vague and fail to clearly convey what the user is agreeing to or rejecting.
These practices often result in users unknowingly consenting to cookies used for analytics, tracking, and marketing purposes. Although the General Data Protection Regulation (GDPR) does not explicitly define dark patterns, its principles of fairness, transparency, and valid consent set clear boundaries for such designs.
The European Data Protection Board (EDPB) describes dark patterns as design choices that manipulate users into making unintended or harmful decisions about their personal data. These practices violate GDPR principles outlined in Articles 4, 5, and 7, which emphasise that consent must be freely given, informed, and unambiguous.
Beyond GDPR, the European Union has introduced legislation such as the Digital Services Act and Digital Markets Act to address dark patterns more explicitly. Globally, countries like the United States are also cracking down, with the Federal Trade Commission (FTC) and state-level privacy laws targeting manipulative consent practices.
CNIL’s Findings
CNIL’s investigation found that many cookie banners failed to make rejecting cookies as easy as accepting them. Common violations included:
Reject options buried in fine print or hidden links.
Overemphasis on acceptance through bold designs or repeated prompts.
Lack of clarity about the purposes of cookies, leaving users confused about their choices.
These tactics were deemed to undermine valid consent, prompting CNIL to issue compliance orders requiring website publishers to redesign their cookie banners within one month.
Tips for Businesses on Cookie Banner Compliance
Here are a few takeaways for businesses with cookie banners:
1. Design with Transparency in Mind
Cookie banners must present clear, balanced options for acceptance and rejection. Users should never feel coerced into consenting.
2. Avoid Manipulative Tactics
Practices like hiding reject buttons, using misleading language, or emphasising acceptance options can erode trust and lead to regulatory penalties.
3. Stay Updated on Regulatory Standards
Beyond GDPR, businesses should monitor evolving regulations such as the Digital Services Act and international privacy laws to ensure compliance.
4. Prioritise User Autonomy
Building trust with users means respecting their choices and ensuring that consent mechanisms empower, rather than deceive, them.
5. Conduct Regular Compliance Audits
Periodically review your website's cookie banners and data collection practices to ensure they align with the latest regulatory requirements. Regular audits can help identify and address potential issues before they lead to penalties.
6. Invest in User-Centric Design
Focus on creating consent banners that are intuitive, user-friendly, and visually clear. Well-designed interfaces not only comply with regulations but also enhance user experience, creating trust and engagement with your brand.
How Can Gerrish Legal Help?
Gerrish Legal is a dynamic digital law firm. We pride ourselves on giving high-quality and expert legal advice to our valued clients. We specialise in many aspects of digital law such as GDPR, data privacy, digital and technology law, commercial law, and intellectual property.
We give companies the support they need to successfully and confidently run their businesses whilst complying with legal regulations without the burdens of keeping up with ever-changing digital requirements.
We are here to help you, get in contact with us today for more information.