How new Garante guidance affects cookie consent and tracking compliance

Recent Garante guidance tightens the rules on cookie consent and tracking

Regulators across Europe — notably Italy’s Garante and the European Data Protection Board (EDPB) — have sharpened their stance on cookie consent and online tracking. This note unpacks the legal backdrop, explains what the guidance really means in practice, and gives a clear checklist companies can use to lower regulatory exposure.

1. The legal baseline and what’s new
Both the Garante and the EDPB reiterate a simple but strict premise: consent for non‑essential cookies must be freely given, specific, informed and unambiguous. That aligns with the GDPR and the ePrivacy framework. In practice, this rules out pre‑ticked boxes, implied consent, and consent walls that bury refusal options behind confusing text.

Regulators now expect organisations to show, easily and reliably, that a user made an affirmative choice before any non‑essential tracking starts. That’s a practical shift: anything that automatically fires third‑party trackers when a page loads will attract scrutiny, because it eliminates a genuine user decision.

2. What this means in practical terms
Vague labels like “for analytics” or lumping multiple purposes into one toggle are no longer good enough. Consent must be granular: users should be able to accept or reject each distinct processing purpose before non‑essential scripts run.

This requirement touches many parts of your tech stack and governance:
– Site architecture and tag management need to be reworked so only strictly necessary code executes by default.
– Marketing must tie every tracker to a documented legal basis and clear purpose.
– Vendor contracts should spell out roles (controller vs processor), responsibilities and cross‑border safeguards.

Supervisory authorities will examine both the technical safeguards and the documentary trail that proves user choices. If you can’t demonstrate affirmative, purpose‑specific consent, you’re at higher risk of enforcement.

3. Practical steps to take now
Start with a map, then fix the plumbing:
– Inventory your consent flows and the tags they gate.
– Reconfigure tag managers to block scripts until valid consent is obtained.
– Use plain, transparent language and offer granular toggles in the UI.
– Ensure your consent solution timestamps choices and keeps an auditable log.
– Update third‑party agreements to reflect the operational constraints of granular consent.
– Run regular checks on CMP performance and third‑party behaviour.
– Prepare concise evidence packs for regulators that show the consent lifecycle and relevant data flows.

These actions don’t just lower enforcement risk — they make it easier to defend your practices if regulators ask questions.

4. Risks and potential sanctions
The stakes are tangible. Supervisors can impose administrative fines under the GDPR, order processing to stop, and demand technical fixes. Beyond penalties, expect operational impacts: gaps in consent can disrupt analytics, reduce ad revenue, and create contractual exposure with partners that rely on lawful consent. There’s also reputational fallout; users increasingly reward privacy‑respecting brands.

Mitigation is straightforward in principle: document decisions, keep consent logs and versioned privacy texts, carry out DPIAs for high‑risk tracking, and implement technical controls that prevent data collection before consent is granted.