Skip to main content

News · 26.10.2021

Nudging not permitted in cookie consent solutions

The buttons used to accept or reject cookies must be equally eye-catching – or equally plain. This was the decision recently passed by the Danish Data Agency. As a result, many website owners must now adjust their cookie solutions.

By Mathias Bartholdy, Attorney-at-law.

On 20 October 2021, the Danish Data Agency passed a decision on whether a particular website’s cookie solution complied with the requirements for consent. The Agency’s decision on the use of nudging in cookie consent solutions was particularly noteworthy.

What is nudging?

Nudging is an attempt to influence others to act in a specific way. The concept is used in many contexts, including everything from designing airports to helping people put money aside for their retirement.

Nudging is also widely used in cookie consent solutions, where the accept button is typically more eye-catching than the reject button. In this way, users are “nudged” into accepting rather than rejecting cookies. Our eyes are automatically drawn to the accept button and, in our eagerness to quickly move past the cookie wall, we are more inclined to click on whatever pops out at us.

The Data Protection Agency’s criticism

This was also the issue in the above case, which concerned a cookie solution consisting of two buttons: ‘Accept’, in orange print against a white background, and ‘ACCEPT ALL’, in white print against an orange background.

The ‘ACCEPT ALL’ button, on the orange background, was considerably more prominent than the ‘Accept’ button on a white background.

As for the design of the buttons, the Agency criticised two aspects: Firstly, the ‘Accept’ and ‘ACCEPT ALL’ options leave the user with the misleading impression that it might not be possible to refuse consent to cookies overall. Secondly, the rejection option did not have the same communication effect. In other words, the option to reject cookies must be just as clear to the user as the option to consent to cookies. Consequently, the website’s cookie solution did not comply with the consent requirements. Learn more about GDPR and compliance here.

How will the decision affect your website?

As a result of the decision, many website owners must now adjust their cookie consent solutions, as most consent solutions are currently designed with an accept button that is more eye-catching than the reject button.

We therefore recommend that you review your cookie consent solution and contact your provider if adjustments are needed. Our GDPR hotline is open. You are welcome to call our GDPR expert and receive free advice on any questions that can be readily answered over the telephone. Contact Mathias Bartholdy here.