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According to the Article 5(3) of the European Union ePrivacy directive website owners must adequately inform users and obtain their consent before setting cookies and any other technology falling within the scope of the directive.


  1. Cookies are usually set to the visitor’s browser automatically when landing on the website for the first time without any possibility of rejecting setting the cookies. This also leads to a situation that the user has no means of understanding which providers are going to set cookies, how they are going to be used, and what are the other terms of processing the user’s personal data.

  2. The cookie notice only informs the user about the use of cookies, and there is no way of rejecting the cookies if continuing to use the site apart from disabling cookies altogether, which is not a very viable option from user experience perspective. In other words, consent is practically enforced.

This issue with the unclarity related to the definition of an explicit consent was resolved with the Court of Justice of the European Union Judgment Case C-673/17, that clearly stated; The consent referred to in those provisions is not validly constituted if, in the form of cookies, the storage of information or access to information already stored in a website user’s terminal equipment is permitted by way of a pre-checked checkbox which the user must deselect to refuse his or her consent. This decision means that consent can’t be implied, enforced, or assumed based on the behavior of the user (e.g. visiting the site), but the user must be informed about the use of cookies, terms associated to this use and actively accept the use of cookies by checking a box or pressing an accept button, for example.

Implications to website owners

It is strongly recommended that if and when a website uses cookies, explicit and informed consent is acquired from the visitor BEFORE setting any cookies. In practice, this is often done by popping up a consent menu through which the visitor can either accept the cookies or change the cookie preferences. N.Rich recommends using a consent management platform, such as CookieFirst, or CookieBot that enable compliance in a simple and user-friendly way.

Here are examples of Cookie Management Platform (CMP) end-user facing functionality from CookieFirst.

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Cookie consent banner

Adjusting cookie settings

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Review specific cookies

Reviewing cookie policy

Implications to N.Rich setup

When using the “legacy” implied consent model, there is no possibility of verifying that an active informed consent was actually given by the user. This leads to a possible risk of cookies being set illegally without consent, which could result in disruptions in the use of the data and in the worst case to being found guilty of violating the GDPR and getting fined a maximum amount of 20 Million Euros. In order to avoid such risks, N.Rich recommends the following actions:

  1. Migrating to an informed, explicit cookie consent model by using a Cookie Managment Platform as soon as possible.

  2. While the “legacy” implied consent model is used, N.Rich Tag in the Cookieless mode should be used. This tag does not set cookies, so it can be used safely even without consent from the end-user. Even with some downsides of using the Cookieless mode, the benefits of ABM are far greater than delaying the launch because of a missing explicit consent process. The downside of using only the Cookieless mode is that analytics and optimization functionalities of N.Rich won’t be able to identify a specific user, but all data is aggregated to account level.

  3. After upgrading to a CMP that supports receiving an explicit cookie-consent, N.Rich Cookieless mode should still be used until the user explicitly accepts the cookies, and after the consent has been granted, N.Rich Standard mode should be used, which will be taking advantage of cookies and enabling optimisation and analytics on person / cookie level.

How to implement N.Rich tag using a CMP and a Tag Manager

When using a CMP, a special first-party cookie that is set to the user denoting the cookie consent. The Tag Manager can typically access this cookie and it can be used as the basis of setting a rule about which tag to load. For example: