Ms. X, represented by noyb - European Center for Digital Rights – Complaint Upheld (Belgium, 2023)

On 18 July 2023, a data subject filed a complaint with the Belgian DPA against Radio Télévision Belge de la Communauté Française (Rtbf - the controller) for their misleading cookie banners. Specifically, the complainant alleged four practices on the website: that there was no “refuse” option on the first level of information in the cookie banner, the presence of misleading button colours, that it was not as easy to withdraw consent as to give it and that the controller referred to legitimate interest. On 21 September 2023, the DPA started the discussions on a settlement proposal. After receiving the proposal on 20 October 2023, the complainant requested six changes to the proposal, including more explicit rules on the appearance of the cookie banners as well as their location, an injunction of the controller to cease unlawful treatment, and a fine under the Article 83(1) GDPR. Considering the facts of the case and the changes requested by the complainant, the DPA rejected all the changes; arguing it would not change the outcome of the settlement and that the fine was only possible if the case was tried on its merits, which is not the case in a settlement proposal. Indeed, the complaint was settled through a settlement decision provided in [https://www.autoriteprotectiondonnees.be/publications/loi-organique-de-l-apd.pdf Article 95(1)(2) LCA], the Belgian national law establishing the national data protection authority. With regards to the first request, the DPA held that a "refuse all" button does not need to be added to the first layer together with the "accept and close" button since this would not lead to a concrete result. Secondly, the DPA held that it was true that both buttons mentioned above were equally visually attractive. However, generally, controllers should not display 'less (visually) attractive' options. Next, the DPA considered the complainant's argument that it is a data subject's right under [https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32002L0058 Article 5(3) ePrivacy Directive] to be able to revoke their consent with the same amount of steps that they needed to give that consent. The DPA stated, however, that it was inappropriate to require such an amendment. Lastly, with regard to the "legitimate interest" reasoning for processing cookies, the DPA stated that this contention was not relevant since, in the present case, the complaint does not regard the alleged violation of the complainant's rights. Therefore, the DPA found no violation.