I just visited theguardian.com to see their cookie banner. The banner says this:
> Your Privacy (`x` button to close the tab)
> US residents have certain rights with regard to the sale or sharing of personal information to third parties.
> Guardian News and Media and our partners use information collected through cookies or in other forms to improve experience on our site and pages, analyze how it is used and show personalized advertising.
> You can opt out of the sale of all of your personal information by pressing
> <button>Do not sell or share my personal information</button>
It's 3 sentences, plus a button that says "Do not sell or share my personal information". I actually don't even think this is GDPR compliant, because my layman's understanding says that GDPR consent must be presented as opt-in, rather than opt-out. (I guess they are going for CCPA/CPRA compliance?) But anyway, I would think that a reasonable person could be expected to notice a button that says "Do not sell or share my personal information" and then click it, especially when it's portrayed prominently at the bottom of the page.
Because this is there 1 millionth cookie banner, because every site and their momma has one.
Also, 90% of cookie banners are not this good. They tell you nothing, hide the "reject" button behind multiple screens, etc. At that point the consumer is trained to click accept.
> Independent, quality original journalism needs your support.
> Please choose an option.
> * Accept personalised advertising and all cookies
> We use cookies and similar technologies to support the Guardian and personalise your experience in other ways. To do this we work with a cross section of [139 partners].
> - or -
> * Reject all and subscribe to Guardian Ad-Lite for €5 per month
> Read the Guardian website without personalised advertising. This does not include ad-free. You will still see non-personalised advertising and we may still use cookies and similar technologies to improve our site.
Followed by:
> Some cookies are necessary to help our website work properly and can’t be switched off. Find out more in our privacy policy and cookie policy, and manage the choices available to you at any time by going to ‘Privacy settings’ at the bottom of any page.
> Cookies and similar technologies collect information from your device and may be used to access personal data about you including page visits and IP addresses. We use this information about you, your devices and your online interactions with us to provide, analyse and improve our services. We use cookies and similar technologies for the following purposes:
> * Store and/or access information on a device
> * Personalised advertising, advertising measurement, audience research and services development
> * Personalised content and content measurement
And finally the buttons:
> ( Accept all ) ( Reject all and subscribe )
> If you already have Guardian Ad-Lite or read the Guardian ad-free, [sign in]
Notice how they show you those three sentences and don't just put a bunch of small print at the bottom of the page. Because if they did, it would be invalid.
The GDPR doesn’t allow opt-out consent to count as consent. The only consent it recognizes as valid consent is opt-in.
However, since we are discussing the banner that The Guardian website shows to US viewers, I assume they’re trying to comply with California privacy law, which does allow opt-out regarding the sale of personal information.
Why would a reasonable person not read it?
I just visited theguardian.com to see their cookie banner. The banner says this:
> Your Privacy (`x` button to close the tab)
> US residents have certain rights with regard to the sale or sharing of personal information to third parties.
> Guardian News and Media and our partners use information collected through cookies or in other forms to improve experience on our site and pages, analyze how it is used and show personalized advertising.
> You can opt out of the sale of all of your personal information by pressing
> <button>Do not sell or share my personal information</button>
It's 3 sentences, plus a button that says "Do not sell or share my personal information". I actually don't even think this is GDPR compliant, because my layman's understanding says that GDPR consent must be presented as opt-in, rather than opt-out. (I guess they are going for CCPA/CPRA compliance?) But anyway, I would think that a reasonable person could be expected to notice a button that says "Do not sell or share my personal information" and then click it, especially when it's portrayed prominently at the bottom of the page.
> Why would a reasonable person not read it?
Because this is there 1 millionth cookie banner, because every site and their momma has one.
Also, 90% of cookie banners are not this good. They tell you nothing, hide the "reject" button behind multiple screens, etc. At that point the consumer is trained to click accept.
From Europe it's this text:
> Personalised advertising - it's your choice
> Independent, quality original journalism needs your support.
> Please choose an option.
> * Accept personalised advertising and all cookies
> We use cookies and similar technologies to support the Guardian and personalise your experience in other ways. To do this we work with a cross section of [139 partners].
> - or -
> * Reject all and subscribe to Guardian Ad-Lite for €5 per month
> Read the Guardian website without personalised advertising. This does not include ad-free. You will still see non-personalised advertising and we may still use cookies and similar technologies to improve our site.
Followed by:
> Some cookies are necessary to help our website work properly and can’t be switched off. Find out more in our privacy policy and cookie policy, and manage the choices available to you at any time by going to ‘Privacy settings’ at the bottom of any page.
> Cookies and similar technologies collect information from your device and may be used to access personal data about you including page visits and IP addresses. We use this information about you, your devices and your online interactions with us to provide, analyse and improve our services. We use cookies and similar technologies for the following purposes:
> * Store and/or access information on a device
> * Personalised advertising, advertising measurement, audience research and services development
> * Personalised content and content measurement
And finally the buttons:
> ( Accept all ) ( Reject all and subscribe )
> If you already have Guardian Ad-Lite or read the Guardian ad-free, [sign in]
Notice how they show you those three sentences and don't just put a bunch of small print at the bottom of the page. Because if they did, it would be invalid.
This is indeed a rather good implementation of ehat GDPR requires: clear unambiguous language, an opt-out available immediately.
This is the definition of informed consent
The GDPR doesn’t allow opt-out consent to count as consent. The only consent it recognizes as valid consent is opt-in.
However, since we are discussing the banner that The Guardian website shows to US viewers, I assume they’re trying to comply with California privacy law, which does allow opt-out regarding the sale of personal information.
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