KHO - KHO:2026:65

Summary

The Finnish Transport and Communications Agency ruled that a media company's two-layer cookie consent mechanism was invalid. The agency found that the design, which made accepting all cookies significantly easier than rejecting them, violated GDPR and the ePrivacy Directive. This decision highlights the importance of truly free and informed consent in cookie management.

Full text

Help KHO - KHO:2026:65: Difference between revisions From GDPRhub Jump to:navigation, search ← Older editVisualWikitext Revision as of 09:05, 2 September 2026 view sourceAv (talk | contribs)Bureaucrats, Interface administrators, noContributionReport, Administrators158 editsTag: Visual edit← Older edit Latest revision as of 09:06, 2 September 2026 view source Av (talk | contribs)Bureaucrats, Interface administrators, noContributionReport, Administrators158 edits Tag: Visual edit Line 105: Line 105: === Facts ====== Facts === A media company (the controller) utilised 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.A media company (the controller) utilised 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 ([https://suomenkuvalehti.fi/ suomenkuvalehti.fi]). 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 GDPR|Article 4(11) GDPR]] and [https://eur-lex.europa.eu/eli/dir/2002/58/oj Article 5(3) ePrivacy Directive]. The Agency found that the controller's cookie policy violated [https://www.finlex.fi/fi/lainsaadanto/2014/917#part_7__chp_24__sec_205 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.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 GDPR|Article 4(11) GDPR]] and [https://eur-lex.europa.eu/eli/dir/2002/58/oj Article 5(3) ePrivacy Directive]. The Agency found that the controller's cookie policy violated [https://www.finlex.fi/fi/lainsaadanto/2014/917#part_7__chp_24__sec_205 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. Latest revision as of 09:06, 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) utilised 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 (suomenkuvalehti.fi). 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

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