[yeahforsureman]

Are you sure?

The ePrivacy Directive requires a (GDPR-level) consent for just placing the cookie, unless it's strictly necessary for the provision of the “service”. The way EU regulators interpret this, even web analytics falls outside the necessity exception and therefore requires consent.

So as long as the user doesn't and/or is not able to automatically signal consent (or non-consent) eg via general browser-level settings, how can you obtain it without trying to get it from the user on a per-site basis somehow? (And no, DNT doesn't help since it's an opt-out, not an opt-in mechanism.)

[exyi]

Everyone I know of will try to click "reject all unnecessary cookies", and you don't need the dialog for the necessary ones. You can therefore simply remove the dialog and the tracking, simplifying your code and improving your users' experience. Can tracking the fraction which misclicks even give some useful data?

[yeahforsureman]

My point was that according to the current interpretation, if they rely on cookies, user analytics (even simple visitor stats where no personal data is actually processed) are not considered "necessary" and are therefore not exempt from the cookie consent obligation under the ePrivacy Directive. The reason why personal data processing is irrelevant is that the cookie consent requirement itself is based on the pre-GDPR ePrivacy Directive which requires, as a rule, consent merely for saving cookies on the client device (subject to some exceptions, including the one discussed).

So you need a consent for all but the most crucial cookies without which the site/service wouldn't be able to function, like session cookies for managing signed-in state etc.

(The reason why you started to see consent banners really only after GDPR came to force is at least in part due to the fact that the ePrivacy Directive refers to the Data Protection Directive (DPD) for the standard of consent, and after DPD was replaced by GDPR, the arguably more stringent GDPR consent standard was applied, making it unfeasible to rely on some concept of implied consent or the like.)

[micromacrofoot]

there are analytics providers that don't require third party cookies, it's not hard to switch

[yeahforsureman]

The cookie consent provision under the ePrivacy Directive doesn't care whether they're first- or third-party. Actually, the way it's been worded, you'd arguably need a consent for (strictly non-"necessary") use of eg local storage, too — afaik this hasn't really come up in regulatory practice or case law, but may be more due to regulators' modest technical expertise or priorities.

A conceptually different matter altogether is consent (possibly) needed under GDPR for various kinds of personal data processing involving the use of cookies (ie not just the placement of cookies as such) and other technologies for tracking, targeting and the like. That's why you see cookie banners with detailed purposes and eg massive lists of vendors (since they can be considered "recipients" of the user's personal data under GDPR). In this context, a valid consent (and the information you have to provide to obtain it) is required (at least) when consent is the only feasible legal basis of the ones available under Art 6 GDPR for the personal data processing activities in question. This is where the national regulators have taken strict stances especially regarding ad targeting and other activities usually involving cross-site tracking, for example, deeming that the only feasible basis for those activities would be consent (ie "opt-in") — instead of, in particular, "legitimate interests" which would enable opt-out-like mechanisms instead. This is the legal context of looking critically at 3rd-party cookies, but unfortunately, for the reasons mentioned above, getting rid of such cookies might still not be enough to avoid the minimal base cookie consent requirement when you use eg analytics... :(

It's pretty ridiculous, I know, and it's a bummer they scrapped the long-planned and -negotiated ePrivacy Regulation which was meant to replace the old ePrivacy Directive and, among other things, update the weird old cookie consent provision.

[saubeidl]

As you said yourself, analytics are not necessary.

It's corpos trying to invade our privacy.