What’s more common: opt-in, opt-out, or notice cookie banners?

There is little standardization concerning how cookie banners are deployed. Generally, however, most cookie banners fall within four broad categories:

1. Notice-only cookie banners. A notice-only cookie banner discloses to website visitors that the website deploys cookies, but the banner does not give the 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 internet browser.

2. Deemed consent cookie banners. A deemed consent cookie banner discloses to website visitors that the website deploys cookies and asserts that visitors’ continued use of the website constitutes deemed, or implied, consent for the placement of cookies.

3. Notice and opt-out cookie banner. 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 cookies or more granular options to opt out of different types of cookies (e.g., behavioral advertising cookies or analytics cookies) or specific cookies (e.g., cookies set by Company A or cookies set by Company B).

4. Notice and opt-in cookie banner. A notice and opt-in cookie banner discloses to consumers that a website would like to deploy cookies and asks the consumer to opt in to the use of cookies before cookies are deployed. A notice and opt-in cookie banner may include a single option to “opt in” to all cookies wherein no cookies would be placed on the consumer’s browser absent consent, or a notice and opt-in cookie banner might provide more granular options to opt in to certain types of cookies (e.g., behavioral advertising cookies) or specific cookies (e.g., cookies set by Company A, or cookies set by Company B).

The following indicates the percentage of companies within the Fortune 500 that deploy each type of cookie banner:[1]

[1] Greenberg Traurig LLP reviewed the publicly available privacy notices and practices of 555 companies (the Survey Population). The Survey Population comprises companies that had been ranked within the Fortune 500 at some point in the past five years as well as additional companies selected from industries that are underrepresented in the Fortune 500. While the Survey Population does not fully match the current Fortune 500 as a result of industry consolidation and shifts in company capitalization, we believe that the aggregate statistics rendered from the Survey Population are representative of mature companies. Greenberg Traurig’s latest survey was conducted between September and October 2022. Websites were visited using the Chrome browser from an IP address associated with California.