New Cookie Law: Browser Settings Do Imply Consent in Hungary – Updated

The bill on the amendment of the Act Nr C. of 2003 on electronic communications, the transposition of Article 5(3) of the ePrivacy Directive 2009/136/EC has been adopted today by the Hungarian Parliament.

As reported earlier, the draft bill submitted to the Parliament – similarly to the position of the UK, Ireland, Latvia, the Netherlands and Sweden – originally required prior consent to the storage of cookies in the users’ terminal equipment. However, during the debate of the bill in the Parliament, the Parliament Committee for Economics and Informatics has submitted an amending proposal to the bill on 29 June 2011, which has altered the language of the cookie consent rule in the draft and eliminated the requirement for the consent to be “prior”.

According to the reasoning of the above proposal, Recital 66 of the Directive allows for user “consent” to be expressed via web browser or other application settings, furthermore, in its information letter dated 28 May 2009 the European Commission also indicated that no prior consent would be required in connection with the new cookie consent rule and the current, opt-out, regime should continue to apply.

The new provision introduced by the legislation under Section 155 (4) of the Act on electronic communications provides that “data may be stored or accessed on the terminal equipment of the subject end-user or subscriber after the provision of clear and comprehensive information – including the purpose of data processing – if prior consent of the end-user or subscriber has been granted hereto.”

Consequently, in the Hungarian jurisdiction the new cookie law may be met by browser settings, thus, cookie consent could come after tracking has taken place.

Finally, we note that the earlier indicated provisions relating to the personal data breach notification have been adopted by the Parliament without significant changes, therefore, the scope of the mandatory data breach notification remained limited to the providers of electronic communication services.

UPDATE: We hereby underline that there is still no official guidance available on the interpretation of the “cookie consent” requirement under Hungarian laws, however, apparently, the reasoning of the recently adopted amendment of the act on electronic communications do not comply with the recently released opinion of the Article 29 Working Party on this subject, which requires prior consent to the use of cookies.