KHO - KHO:2026:65

Summary

Finland's Supreme Administrative Court ruled that a media company's cookie consent mechanism was unlawful. The court found that the process for rejecting non-essential cookies was significantly more difficult than accepting them, thus violating the ePrivacy Directive and GDPR's requirement for freely given consent. The court dismissed the company's appeal and request for a preliminary ruling from the CJEU.

Full text

Help KHO - KHO:2026:65: Difference between revisions From GDPRhub Jump to:navigation, search Newer edit →VisualWikitext Revision as of 08:27, 2 September 2026 view source Av (talk | contribs)Bureaucrats, Interface administrators, noContributionReport, Administrators158 edits Tag: Decisions [1.0]Newer edit → (No difference) Revision as of 08:27, 2 September 2026 KHO - KHO:2026:65 Court: KHO (Finland) Jurisdiction: Finland Relevant Law: Article 4(11) GDPR Article 7(3) GDPR Article 5(3) ePrivacy Directive 2002/58/ECLaki sähköisen viestinnän palveluista (917/2014) 205 § Decided: 27.08.2026 Published: 27.08.2026 Parties: Otavamedia Oy National Case Number/Name: KHO:2026:65 European Case Law Identifier: ECLI:FI:KHO:2026:65 Appeal from: Helsingin HAO (Administrative Court of Helsinki)5.2.2026 nro 638/2026 Appeal to: Not appealed Original Language(s): Finnish Original Source: KHO (in Finnish) Initial Contributor: av The Supreme Administrative Court held that a media company had violated the national provision implementing Article 5(3) ePrivacy Directive. Consent given to the use of cookies on its website was not freely given, as rejecting non-essential cookies was significantly more difficult than accepting all cookies. Contents 1 English Summary 1.1 Facts 1.2 Holding 2 Comment 3 Further Resources 4 English Machine Translation of the Decision English Summary Facts A media company (the controller) employed a two-layer mechanism to request user consent for the use of cookies on the website of a language news magazine owned by the controller. The first layer of the mechanism primarily consisted of brief general information about the use of cookies and included “Accept All” and “Settings” buttons. Clicking the “Settings” button opened up the second level of the mechanism for the user. The second layer contained, among other things, tabs, subheadings, menus, detailed information on the use of cookies and other data, as well as the buttons “Reject All,” “Accept Selected,” and “Accept All”. The “Accept All” button was highlighted with a green background on both layers. On 26 April 2024, the Finnish Transport and Communications Agency issued a decision where it held that the consent obtained in this manner could not be considered freely given as required by Article 4(11) GDPR and Article 5(3) ePrivacy Directive. The Agency found that the controller's cookie policy violated Section 205(1) of the Finnish Act on Electronic Communications Services, as accepting all cookies was easier for the user than rejecting them. The agency pointed out that opting out of non-essential cookies required clicking a settings button, scrolling all the way down the settings menu, and finally clicking the opt-out button. The controller appealed the agency's decision to the Administrative Court of Helsinki. The court of first instance dismissed the appeal and pointed out that opting out of non-essential cookies required at least two clicks, whereas consent could be given with a single click. The controller subsequently appealed this decision to the Supreme Administrative Court and also requested the case to be referred to the CJEU for a preliminary ruling regarding the interpretation of Articles 4(11) and 7(3) GDPR. Holding The Supreme Administrative Court came to the same conclusion as the previous instances and dismissed the controller’s appeal. First, the court found that there were no grounds to refer the case to the CJEU for a preliminary ruling: it considered the interpretation of Articles 4(11) and 7(3) GDPR to be sufficiently clear. Second, the court held that the cookie policy at issue violated Section 205(1) of the Act on Electronic Communications Services, as the consent given by the user could not be considered freely given. The court interpreted Section 205 of the Communications Services Act in light of EU law and CJEU jurisprudence. In particular, the court referred to the CJEU’s decisions in the cases C-673/17 Planet49 and and C-61/19 Orange România. In Planet49, the CJEU emphasised that consent requires active behaviour by the user in order to be freely given.1 In Orange România, the controller had unduly influenced the data subject’s freedom to object to the processing of their data by requiring the data subject to fill out an additional form to withdraw their consent.2 The court argued that accepting all cookies was remarkably simple and quick, and users were guided towards this choice. In contrast, the option to withhold consent was not explicitly presented right away, and opting out of non-essential cookies was significantly slower and more cumbersome for the user. Thus, the consent management mechanism had unduly influenced the user’s freedom to choose not to give consent. Comment Share your comments here! Further Resources Share blogs or news articles here! English Machine Translation of the Decision The decision below is a machine translation of the Finnish original. Please refer to the Finnish original for more details. The Supreme Administrative Court had to decide whether a website’s cookie policy was unlawful on the grounds that the consent given by the user on the site could not be considered to have been given voluntarily. The website’s consent management mechanism was designed so that giving consent at the first level of the mechanism was remarkably simple and quick. Users were also guided toward this choice. In contrast, the option to withhold consent was not explicitly presented immediately, and making this choice was significantly slower and more cumbersome for the user. The consent management mechanism had inappropriately influenced the user’s freedom of choice not to grant consent, and granting consent was therefore not based on a genuine opportunity for free choice. The cookie policy was unlawful. Section 205(1) and (2) and Section 330 of the Act on Electronic Communications Services Directive 2002/58/EC of the European Parliament and of the Council concerning the processing of personal data and the protection of privacy in the electronic communications sector (Electronic Communications Privacy Directive), as amended by Directive 2009/136/EC, Article 1(1), Article 2, second paragraph, point (f), and Article 5(3) Regulation (EU) 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), Article 4(11) and Article 7(4) Decision subject to appeal Helsinki Administrative Court, February 5, 2026, No. 638/2026 Decision of the Supreme Administrative Court The Supreme Administrative Court grants Otavamedia Oy leave to appeal and will review the case. The request for a preliminary ruling from the Court of Justice of the European Union is denied. The appeal is dismissed. The final outcome of the Administrative Court’s decision is not altered. Otavamedia Oy’s request for reimbursement of legal costs is denied. Background In its decision of April 26, 2024, the Finnish Transport and Communications Agency found that the cookie policies on Otavamedia Oy’s suomenkuvalehti.fiwebsite’s cookie policies violate Section 205(1) of the Act on Electronic Communications Services (the Communications Services Act), Section 205(1), among other things, in that accepting all cookies is easier in the website’s consent management mechanism than refusing them, in a manner which also fails to meet the requirements for consent set forth in the General Data Protection Regulation. In this regard, the decision refers, among other things, to the fact that accepting all cookies was possible at the first level of the mechanism, where the relevant option was highlighted in green, whereas opting out of non-essential cookies required clicking a settings button, scrolling all the way down the settings menu, and finally clicking the opt-out button. This differential treatment of options has had a significant impa

Entities