The Council of State has confirmed two fines totaling 100 million euros imposed by the CNIL against Google. He judges that Google has not complied with its obligations in terms of obtaining the consent of its users for the deposit of cookies, and considers that the fines are not disproportionate, taking into account in particular the significant benefits produced by advertising cookies.
The CNIL decision
In December 2020, the National Commission for Computing and Liberties (CNIL) condemned the company Google to pay two fines totaling 100 million euros, because it had notably failed to comply with its obligation to collect the consent of users before any deposit of cookies or other tracers (article 82 of the Data Protection Act, transposing the European ePrivacy Directive of 2002). Google seized the Council of State to have this sanction canceled.
When a user visited the google.fr page, several cookies pursuing an advertising purpose were automatically deposited on his computer without action on his part, which implies that the search engine had not obtained the prior consent of the visitor.
In addition, the information banner which appeared at the bottom of the page did not provide the user with any information relating to the cookies which had nevertheless already been placed on his computer, as soon as he arrived on the site.
Finally, when a user deactivated the personalization of ads on Google search by using the mechanism made available to him from the “Consult now” button, one of the advertising cookies remained stored on his computer and continued to read information intended for the server to which it is attached.
The Council of State confirms
In its decision, the Council of State confirmed the competence of the CNIL to intervene, as well as the findings it made: lack of clear and complete information for users, failure to obtain their prior consent and faulty mechanism for opposition to advertising cookies. Indeed, the control carried out by the CNIL in March 2020 established that 7 cookies were automatically installed on users’ computers as soon as they arrived on the site, including 4 which had only an advertising purpose. During the control procedure carried out by the CNIL, Google modified its practices in August 2020, but continued not to inform the user directly and explicitly about the purposes of its cookies and the means of opposing them.
For the Council of State: 19. It follows from the provisions of article 82 of the law of January 6, 1978 cited in point 6 that any operation to collect or deposit information stored in a user’s terminal must be the subject of information prior, clear and complete relating to the purpose of cookies or other tracers and the means available to users to oppose them. It is with good reason that, by a sufficiently reasoned decision on this point and not vitiated by an error of assessment, the Restricted Committee of the CNIL held that the facts set out in the previous points characterized a lack of clear and complete information users, a lack of prior collection of their consent and a faulty mechanism for opposing cookies, as provided for by article 82 of the law of January 6, 1978.
For these various reasons, the Council of State rejects Google’s request to cancel the sanction imposed on it by the CNIL.
More informations ?
See our analysis of the CNIL decision in 2020
Read the decision of the Council of State available in the appendix.
Read the conclusions of the public rapporteur available in the appendix
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100,000,000 euros: a cookie that is expensive for Google – Droit & Technologies