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Spain: AEPD updates guide on the use of cookies in light of revised EDPB guidelines on consent, adapts cookie walls and continued browsing provisions

The Spanish data protection authority ('AEPD') announced, on 28 July 2020, that it had published an updated version of its guide on the use of cookies ('the Updated Guide') in order to adapt it to the European Data Protection Board's ('EDPB') Guidelines 05/2020 on Consent under Regulation 2016/679 ('the Guidelines on Consent'). In particular, the Updated Guide addresses the amendments implemented by the EDPB in its Guidelines on Consent, namely the validity of consent provided by the data subject when interacting with cookie walls and the issue of scrolling or swiping through a webpage as a clear and affirmative action of consent.

Specifically, the Updated Guide provides that cookie walls cannot be used, since they do not offer a valid alternative to consent. The AEPD stressed that these criteria are of particular importance in relation to cases where the denial of access would prevent the exercise of a right legally recognised to a user, such as when access to a website is the only means provided in order to exercise the right. In addition, the Updated Guide recalls that the EDPB established that continued browsing cannot constitute a valid way to obtain consent, and therefore Section 3.2.3(e) of the Updated Guide was amended accordingly.

Lastly, the AEPD recalled that the Updated Guide must be implemented no later than 31 October 2020.

You can read the press release here and the Updated Guide here, both only available in Spanish.