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Italy: Garante launches consultation on cookies guidelines, addresses passive identifiers, cookie walls and scrolling

The Italian data protection authority ('Garante') announced, on 10 December 2020, that it has launched a public consultation, on 26 November 2020, on the guidelines for the use of cookies by site managers. In particular, the guidelines address, among other things, rules relating to 'passive' identifiers, such as fingerprinting, scrolling, and the ban on cookie walls, Privacy by Design, as well as third-party cookies. More specifically, the guidelines include within their scope 'fingerprinting,' noting, in particular, that this mechanism is increasingly used to identify the device used through collecting information on the specific configuration of the device, and subsequently, for the profiling and displaying of personalised advertisements. In addition, the guidelines note that for fingerprinting, unlike for cookies where there exists the possibility of direct removal, the user cannot independently stop the profiling but instead has to resort to the actions of the owner.

Moreover, with respect to scrolling, the guidelines note that scrolling down a website may be part of more a more complex set of actions which generate a pattern of use showing that the user has given their unequivocal consent to the use of cookies. Lastly, the guidelines specify that the use of cookie walls, which oblige the user to consent to be able to access the website, does not amount to consent under Article 4(11) of the General Data Protection Regulation (Regulation (EU) 2016/679) ('GDPR') unless the user is able to also access equivalent content or services without needing to accept the use of cookies.

The public consultation is open for 30 days after its publication in the Official Gazette.

You can read the announcement here, the notice on the launch of the consultation here, and the Guidelines here, all only available in Italian.