The term “cookie banner” refers to a banner, or splash page, deployed on a website to inform visitors that the website uses cookies, and other online tracking technologies. Some cookie banners also give website visitors choices with respect to whether tracking technologies are, or are not, used, including via cookie “opt-in” or “opt-out” user controls.
There are no specific requirements that mandate where a cookie banner must be deployed (e.g., top of the screen, bottom of the screen, centered on a screen, or in a corner of the screen), the verbiage used within the banner, or the specific options that should be given to consumers. Generally, however, most cookie banners fall within one of the following three categories:
- Notice Only. A “notice only” cookie banner discloses to visitors that the website deploys cookies, and other tracking technologies, but does not give the website visitor any direct control concerning the use of cookies. In other words, the website visitor is not asked to permit or accept cookies, nor are they given a tool or mechanism for disabling cookies. Some notice-only cookie banners may, however, provide information to the visitor on how cookies can be disabled within the visitor’s website browser.
- Notice and Opt-Out. A “notice and opt out” cookie banner discloses to visitors that the website deploys cookies and provides the visitor with a mechanism for disabling the use of cookies on the website in the future. This may include a single option to “opt out” of all non-essential cookies, or it might provide a more granular option to opt out of some types of cookies (e.g., behavioral advertising cookies or analytics cookies).
- Notice and Opt-In Consent. A “notice and opt in consent” cookie banner discloses to consumers that the website would like to deploy cookies and asks the visitor to opt in to the use of cookies before the cookies are deployed. This may include a single option to “opt in” to all cookies wherein no cookies would be placed on the visitor’s browser absent consent, or it might provide more granular options to opt in to some types of cookies (e.g., behavioral advertising cookies), but not others (e.g., cookies necessary for the website to function as the site visitor expects).
Based upon a review of the websites of the companies listed in the Fortune 500, approximately 35% of websites utilize some form of a cookie banner.[1]
[1] Review was conducted in November of 2020 of those companies that had been listed within the Fortune 500 as of 2019. Full analysis is available to clients of Greenberg Traurig LLP. Advertising cookies were identified using Ghostery for Chrome. In situations in which a Fortune 500 company was a holding company that did not operate a significant website, the website of one of the holding company’s operating units was examined.