Question

What is a cookie banner legally required to do?

Vault Verified
Curated Intelligence
Definitive Source
Answer

Obtain valid consent before storing or accessing non-essential information on a device — and most cookie banners do not meet the standard, which is why regulators across Europe have issued repeated enforcement decisions about them.

The legal basis. In the UK, the Privacy and Electronic Communications Regulations (PECR) govern storing and accessing information on a device, with the consent standard taken from UK GDPR. So the question is not whether a banner exists but whether the consent it obtains is valid.

What valid consent requires:

Freely given. Not a condition of access where that is disproportionate.

Specific, by purpose — so bundling analytics, advertising and personalisation into one acceptance is inadequate.

Informed, before the choice is made.

Unambiguous, by clear affirmative action.

As easy to withdraw as to give.

What is therefore not valid, despite being common:

Pre-ticked boxes.

Implied consent from continued browsing — "by using this site you agree" does not work.

Cookie walls conditioning access on acceptance, in many circumstances.

Setting non-essential cookies before a choice is made, which a substantial proportion of sites do — the banner appears while the tracking has already begun.

Making rejection harder than acceptance. A prominent "Accept all" with rejection hidden behind several clicks in a settings panel is the single most enforced-against pattern. Reject must be as accessible as accept, which is why banners increasingly show both buttons together.

Interface design pressuring one choice — greyed-out reject buttons, emotive language, repeated prompting.

What is exempt. Strictly necessary cookies require no consent: those needed for a service the user has explicitly requested, such as session management, load balancing, and remembering basket contents. Analytics is not strictly necessary, however useful it is — this is settled, and is the exemption most frequently claimed wrongly.

What good practice looks like: equally prominent accept and reject; granular purpose controls; no non-essential cookies before consent; an accessible way to change the decision later; and a clear statement of what each category does.

General information, not legal advice.

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