MediaHuis – Complaint Upheld (Belgium, 2024)

A data subject visited four website operated by MediaHuis, namely: * Gazet van Antwerpen; * De Standaard; * Het Nieuwsblad; * Het Belang van Limburg. On each website there was a cookie banner which: * Didn’t contain a reject button within its first layer;Buttons colours were misleading; * It was not as easy to withdraw consent as it was to give it; * Contained a reference to the legal basis of legitimate interest. The data subject filed four complaints referring to abovementioned cookie banners with the Belgian DPA (ADP/GBA). noyb was appointed by the data subject as their representative under Article 80(1) GDPR. MediaHuis was assigned the role of data controller. According to the controller, the law, especially Article 7(3) GDPR or Article 4(11) GDPR, didn’t prescribe the controller to implement reject button within the first layer of the cookie banner or to use different colours for the buttons or to implement consent withdrawal option in a particular way. The fact that the cookie banners were not in line with the guidelines of different data protection authorities and the EDPB, as mentioned by the data subject, did not amount to violation of the GDPR. Moreover, the data subject gave their consent for processing activities of the controller and, for that reason, they had no interest to bring a case before the DPA. The DPA found the controller violated the Article 5(1)(a) GDPR, Article 6(1)(a) GDPR, Article 7(3) GDPR. Firstly, the DPA clarified that for the consent to be freely and unambiguously given under Article 6(1)(a) GDPR and Article 5(3) ePrivacy Directive, the reject button had to be presented alongside the accept button. Otherwise, the data subject would have no real alternative to consenting for placing and processing cookies. Secondly, the buttons’ colours used by the controller were of deceptive nature. They inclined a data subject to give a consent for the cookies processing. Because of that, the controller was in breach of Article 5(1)(a) GDPR. S