A seismic shift is occurring in the European Union's compliance framework. The recently introduced Directive (EU) 2024/2853 modernizes product liability rules to encompass software and digital services. This pivotal change has profound implications for Third Party Cookie Consent Providers—such as the commonly used Cookiebot, Usercentrics, OneTrust, or Cookie Information, amongst many others—that depend on third-party loaded scripts and pixel trackers, also known as Beacons.
Under the new directive, these providers could face strict liability for failing to prevent unauthorized access to user devices before obtaining consent. With privacy regulations tightening and accountability extending across the supply chain, it's necessary to ask: Is your consent solution provider prepared for this heightened level of scrutiny?
Cookie Consent Providers as Product Manufacturers
The directive redefines software and digital services as "products," rendering their providers liable if these solutions fail to perform as promised. If a consent solution preloads scripts or trackers before securing user consent, it could be deemed "defective." The repercussions? Liability for privacy violations, potential fines for non-compliance with the GDPR and the ePrivacy Directive, and significant reputational damage.
The Non-Compliance Trap
Many third-party cookie consent solutions preload scripts and pixel trackers (also known as beacons), or cookies onto a user's device before consent is obtained. This practice directly contravenes Article 5(3) of the ePrivacy Directive, which mandates explicit user consent prior to any data storage or access. Such violations not only place website owners at risk but also expose consent providers to legal challenges under the new liability framework.
Strict Liability: No Room for Error
The directive introduces a no-fault liability standard for providers of defective products. Whether the failure to block unauthorized data access is intentional or accidental, the provider can be held accountable. This shift necessitates a higher standard of compliance and transparency from solution providers.
What This Means for Consent Solution Providers
Embrace Privacy by Design
Providers must ensure their solutions are inherently designed to block all non-essential cookies, scripts, and trackers until explicit consent is obtained. Privacy by design is no longer optional—it's essential.
Transition to First-Party Solutions
Providers that rely on third-party trackers must innovate or risk becoming obsolete. First-party solutions, hosted and controlled directly by website operators, represent the future of compliant data collection.
Enhance Transparency and Documentation
Consent solution providers need to meticulously document their compliance processes and proactively demonstrate adherence to the GDPR, the ePrivacy Directive, and the new liability framework.
The Hidden Risks for Businesses Using These Solutions
Businesses relying on third-party consent providers must critically assess whether their providers are fully compliant with the evolving laws. Overlooking the potential liabilities of your consent solution could result in:
- Regulatory Fines: GDPR penalties can reach up to €20 million or 4% of global turnover. Directive 2024/2853 introduces an additional layer of direct accountability.
- Reputational Damage: Non-compliance can erode user trust and damage brand equity.
- Operational Disruptions: Providers unable to adapt to the new rules may leave businesses scrambling for compliant alternatives.
A Wake-Up Call for the Industry
Directive (EU) 2024/2853 is a mandate for innovation and adaptation. Consent solution providers must rise to the challenge, adopt privacy by design principles, and eliminate practices that preload trackers before consent.
For businesses, it's crucial to evaluate your consent solution providers with a discerning eye. Does your provider align with the evolving compliance requirements? Are they transparent about their processes?
Compliance today goes beyond penalty avoidance; it requires building trust, maintaining resilience, and promoting responsible data practices.
We must take this opportunity to set a new standard for accountability and user trust by transitioning to first-party consent management solutions like AesirX Analytics & Consent Management Platform. By removing the risk associated with third-party data controllers and processors, businesses can enhance compliance, save money, and avoid paying for cookie consent solutions that fail to meet regulatory standards.
Ronni K. Gothard Christiansen // VikingTechGuy
Creator, AesirX.io
