January 18, 2021

Volume XI, Number 18

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January 15, 2021

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What Percentage of Websites Have a Cookie Banner? Is it Increasing or Decreasing? Is it "Opt-Out" or "Opt-In"?

What percentage of websites have a cookie banner?

The term “cookie banner” refers to a banner, or splash page, deployed on a website to inform visitors that the website uses cookies, and other online tracking technologies. Some cookie banners also give website visitors choices with respect to whether tracking technologies are, or are not, used, including via cookie “opt-in” or “opt-out” user controls.

There are no specific requirements that mandate where a cookie banner must be deployed (e.g., top of the screen, bottom of the screen, centered on a screen, or in a corner of the screen), the verbiage used within the banner, or the specific options that should be given to consumers. Generally, however, most cookie banners fall within one of the following three categories:

  1. Notice Only. A “notice only” cookie banner discloses to visitors that the website deploys cookies, and other tracking technologies, but does not give the website visitor any direct control concerning the use of cookies. In other words, the website visitor is not asked to permit or accept cookies, nor are they given a tool or mechanism for disabling cookies. Some notice-only cookie banners may, however, provide information to the visitor on how cookies can be disabled within the visitor’s website browser.

  1. Notice and Opt-Out. A “notice and opt out” cookie banner discloses to visitors that the website deploys cookies and provides the visitor with a mechanism for disabling the use of cookies on the website in the future. This may include a single option to “opt out” of all non-essential cookies, or it might provide a more granular option to opt out of some types of cookies (e.g., behavioral advertising cookies or analytics cookies).

  1. Notice and Opt-In Consent. A “notice and opt in consent” cookie banner discloses to consumers that the website would like to deploy cookies and asks the visitor to opt in to the use of cookies before the cookies are deployed. This may include a single option to “opt in” to all cookies wherein no cookies would be placed on the visitor’s browser absent consent, or it might provide more granular options to opt in to some types of cookies (e.g., behavioral advertising cookies), but not others (e.g., cookies necessary for the website to function as the site visitor expects).

Based upon a review of the websites of the companies listed in the Fortune 500, approximately 35% of websites utilize some form of a cookie banner.[1]


Is the percentage of websites that have a cookie banner increasing or decreasing?

The term “cookie banner” refers to a banner, or splash page, deployed on a website to inform visitors that the website uses cookies, and other online tracking technologies. Some cookie banners also give website visitors choices with respect to whether tracking technologies are, or are not, used, including via cookie “opt-in” or “opt-out” user controls.

A review of the websites of the companies listed in the Fortune 500 conducted in the first quarter of 2020 found that 28% of the companies were using a cookie banner to website visitors with a California IP address. The review of was replicated in the fourth quarter of 2020 and found that, at that time, 35% of companies utilized a cookie banner. As a result, there appears to have been a 7% rise in the number of companies that utilize cookie banners in 2020. [2]


What percentage of websites utilize a banner that gives visitors the ability to “opt-out” of the use of advertising cookies?

4.2%

The term “cookie banner” refers to a banner, or splash page, deployed on a website to inform visitors that the website uses cookies, and other online tracking technology. Some cookie banners also give website visitors choices with respect to whether tracking technologies are, or are not, used, including via cookie “opt-in” or “opt-out” user controls.

There are no specific requirements that mandate where a cookie banner must be deployed (e.g., top of the screen, bottom of the screen, centered on a screen, or in a corner of the screen), the verbiage used within the banner, or the specific options that should be given to consumers. Generally, however, most cookie banners fall within one of the following three categories:

  1. Notice Only. A “notice only” cookie banner discloses to visitors that the website deploys cookies, and other tracking technologies, but does not give the website visitor any direct control concerning the use of cookies. In other words, the website visitor is not asked to permit or accept cookies, nor are they given a tool or mechanism for disabling cookies. Some notice-only cookie banners may, however, provide information to the visitor on how cookies can be disabled within the visitor’s website browser.

  1. Notice and Opt-Out. A “notice and opt-out” cookie banner discloses to visitors that the website deploys cookies and provides the visitor with a mechanism for disabling the use of cookies on the website in the future. This may include a single option to “opt out” of all non-essential cookies, or it might provide a more granular option to opt out of some types of cookies (e.g., behavioral advertising cookies or analytics cookies).

  1. Notice and Opt-In Consent. A “notice and opt-in consent” cookie banner discloses to consumers that the website would like deploy cookies and asks the visitor to opt in to the use of cookies before the cookies are deployed. This may include a single option to “opt in” to all cookies wherein no cookies would be placed on the visitor’s browser absent consent, or it might provide more granular options to opt-in to some types of cookies (e.g., behavioral advertising cookies), but not others (e.g., cookies necessary for the website to function as the site visitor expects).

Based upon a review of the websites of the Fortune 500, approximately 4.2% of websites utilize a cookie banner that allows visitors to opt out, or turn off, advertising cookies when the site is accessed by a visitor with a California-originating IP address.[3] While the overall percentage is low, almost double the number of companies offered an opt-out cookie banner at the end of 2020 as compared to the number of companies that offered an opt-out cookie banner at the beginning of 2020.


What percentage of websites utilize a banner that seeks “opt-in” consent before deploying cookies?

The term “cookie banner” refers to a banner, or splash page, deployed on a website to inform visitors that the website uses cookies, and other online tracking technology. Some cookie banners also give website visitors choices with respect to whether tracking technologies are, or are not, used, including via cookie “opt-in” or “opt-out” user controls.

There are no specific requirements that mandate where a cookie banner must be deployed (e.g., top of the screen, bottom of the screen, centered on a screen, or in a corner of the screen), the verbiage used within the banner, or the specific options that should be given to consumers. Generally, however, most cookie banners fall within one of the following three categories:

  1. Notice Only. A “notice only” cookie banner discloses to visitors that the website deploys cookies, and other tracking technologies, but does not give the website visitor any direct control concerning the use of cookies. In other words, the website visitor is not asked to permit or accept cookies, nor are they given a tool or mechanism for disabling cookies. Some notice-only cookie banners may, however, provide information to the visitor on how cookies can be disabled within the visitor’s website browser.

  1. Notice and Opt-Out. A “notice and opt-out” cookie banner discloses to visitors that the website deploys cookies and provides the visitor with a mechanism for disabling the use of cookies on the website in the future. This may include a single option to “opt out” of all non-essential cookies, or it might provide a more granular option to opt out of some types of cookies (e.g., behavioral advertising cookies or analytics cookies).

  1. Notice and Opt-In Consent. A “notice and opt-in consent” cookie banner discloses to consumers that the website would like to deploy cookies and asks the visitor to opt in to the use of cookies before the cookies are deployed. This may include a single option to “opt in” to all cookies wherein no cookies would be placed on the visitor’s browser absent consent, or it might provide more granular options to opt in to some types of cookies (e.g., behavioral advertising cookies), but not others (e.g., cookies necessary for the website to function as the site visitor expects).

Based upon a review of the websites of the Fortune 500, approximately 12% of websites utilize a cookie banner that seeks opt-in consent when the site is accessed by a visitor with a California-originating IP address.[4] Such banners are typically structured to ask consumers to “accept” the use of cookies, and are supported by technical tools that prevent the dropping of cookies or the loading of other tracking technologies until after the site visitor’s opt-in consent preference is recorded.


[1] Review was conducted in November of 2020 of those companies that had been listed within the Fortune 500 as of 2019. Full analysis is available to clients of Greenberg Traurig LLP. Advertising cookies were identified using Ghostery for Chrome. In situations in which a Fortune 500 company was a holding company that did not operate a significant website, the website of one of the holding company’s operating units was examined.

[2] Websites of each company were reviewed during the first quarter of 2020 from an IP address associated with Los Angeles, California, using Chrome for iOS Version 79.0.3945.88 (official build) (64 bit). Advertising cookies were identified using Ghostery for Chrome Version 8.4.4. In situations in which a Fortune 500 company was a holding company that did not operate a significant website, the website of one of the holding company’s operating units was examined.

[3] Review was conducted in November of 2020 of those companies that had been listed within the Fortune 500 as of 2019. Full analysis is available to clients of Greenberg Traurig LLP.

[4] Review was conducted in November of 2020 of those companies that had been listed within the Fortune 500 as of 2019. Full analysis is available to clients of Greenberg Traurig LLP.

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©2020 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume X, Number 339
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About this Author

David A. Zetoony Privacy Attorney Greenberg Traurig
Shareholder

David Zetoony, Co-Chair of the firm's U.S. Data, Privacy and Cybersecurity Practice, focuses on helping businesses navigate data privacy and cyber security laws from a practical standpoint. David has helped hundreds of companies establish and maintain ongoing privacy and security programs, and he has defended corporate privacy and security practices in investigations initiated by the Federal Trade Commission, and other data privacy and security regulatory agencies around the world, as well as in class action litigation. 

David receives regular recognitions from clients and peers for...

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