Yes.
Most cookie banners can be classified into one of three general categories: (1) notice only banners, (2) notice + opt-out banners, and (3) notice + opt-in banners. If a company chooses to adopt a cookie banner that provides notice and solicits the opt-in consent (e.g., “I agree”) of website users, the company would have a strong argument that it does not need to disclose that it has sold information, does not need to forward deletion requests to the providers of its third party cookies, and does not need to include an “opt out of sale” link on its website.1
Companies often struggle with how to display a cookie banner given the complexities of conveying information to individuals that may lack technical expertise, and “banner fatigue” – i.e., the fact that website visitors are presented with so many pop-ups and banners that they often do not spend the time to read banners that appear before closing them.
There is relatively little empirical data publicly available concerning website visitors interactions with cookie banners. The little data that does exist, however, indicates that user acceptance rates are significantly impacted by where a cookie banner is placed on a screen. For example, in one study researchers randomly placed the same cookie banner at the top, the top-left, the top-right, the bottom, the bottom-left, and the bottom-right of a website and then observed how 14,135 website visitors interacted with the banner.2 They found that when the banner was placed in a “bar” at the top of the page approximately 1.8% of visitors accepted cookies. When the same banner was placed on the bottom-left of the screen the acceptance rate jumped to 18.4%. While the researchers did not probe the cause of the difference, they suspected that the bottom-left placement was more likely to cover the main content of a website (in comparison, notices shown at the top often hide only design elements), and that website visitors were accustomed to the left-to-right directionality of Latin script. Both factors may cause viewers to interact with a cookie banner at the bottom left.
For more information and resources about the CCPA visit http://www.CCPA-info.com.
This article is part of a multi-part series published by BCLP to help companies understand and implement the General Data Protection Regulation, the California Consumer Privacy Act and other privacy statutes. You can find more information on the CCPA in BCLP’s California Consumer Privacy Act Practical Guide, and more information about the GDPR in the American Bar Association’s The EU GDPR: Answers to the Most Frequently Asked Questions.
1. Cal. Civil Code 1798.108(c); 1798.115(c)(1); 1798.140(t)(1), (2)(A).
2. Christine Utz, Martin Degeling, Sascha Fahl, Florian Schaub, and Thorsten Holz, 2019, (Un)informed Consent: Studying GDPR Consent Notices in the Field available at https://arxiv.org/pdf/1909.02638.pdf.
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