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Netherlands: Court of Appeal rules Criteo must cease placement of cookies without consent

On January 4, 2024, the Amsterdam Court of Appeal published its judgment, as issued on December 5, 2023, in which it held that Criteo must cease and desist from the placement of cookies on individual's computers and/or other devices without their consent, following an appeal by Criteo.

Background to the case

In particular, the Court of Appeal highlighted that Criteo brought an appeal following a judgment of October 18, 2023, in which the Court of Amsterdam held that Criteo was unable to place cookies on user devices without their consent. Notably, the Court of Appeal reminded that the case concerns two entities, Criteo B.V. and Criteo S.A. (collectively Criteo), the latter of which was previously subject to a decision by the French data protection authority (CNIL) and was fined €40 million for violation of the General Data Protection Regulation (GDPR).

Findings of the Court of Appeal

Specifically, the Court of Appeal upheld the decision by the Court of Amsterdam, determining that Criteo did not explain why it is impossible to only make the option of placing a cookie available to third parties who can demonstrate that they have the required consent, before placing the cookies. Notably, the Court of Appeal considered that although this may be inconvenient for Criteo, such an option is not impossible.

Outcomes

Therefore, the Court of Appeal determined that Criteo S.A. must cease and desist from unlawful actions by no longer placing, whether or not via third party websites, cookies on the computer and/or devices of the respondent before the respondent has given legally valid consent to place cookies. Criteo S.A. was ordered to do so on a penalty of €250 per day that the cookies continue to be placed following the judgement, with a maximum penalty of €25,000.

You can read the decision, only available in Dutch, here.

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