Why are pre-ticked boxes and passive consent not valid?

Pre-ticked boxes and passive consent are not valid where the law requires a clear affirmative action because they do not demonstrate that the user deliberately chose to agree.

With a pre-ticked box, acceptance is selected by default and the user must take action to refuse it. Silence, inactivity, or simply leaving a default setting unchanged also fails to show an unambiguous decision.

The Court of Justice of the European Union confirmed this principle in the Planet49 judgment, ruling that cookie consent obtained through a pre-selected checkbox that users must deselect to refuse is not valid.

This does not mean that consent can never be expressed through a user’s actions. A deliberate action may constitute consent when it clearly shows agreement to a specific purpose. The problem is relying on inaction, default settings, or passive behaviour as evidence of consent.

A cookie consent banner should therefore require an active choice before activating technologies that depend on consent.