Cookie Banner 101: From Legal Requirements to UX Best Practices

Cookie banners at a glance

• Cookie banners have become a foundational element of website compliance and user privacy—with regulations like GDPR and CCPA requiring that websites obtain explicit consent before processing personal data through cookies.
• While cookie banner requirements vary, effective implementation requires clear language, granular controls, and respect for user choices that balance legal compliance with a positive user experience.
• Keep reading to learn about cookie banner best practices, legal requirements across different regions, and how to implement an effective consent management strategy.
• You'll also find step-by-step implementation guidance and UX best practices to help you create compliant, user-friendly cookie banners.

What is a cookie banner?

A cookie banner, also known as a cookie consent banner or cookie notice, is a pop-up or notification that most often appears when a user visits a website for the first time.

It serves two primary purposes: to inform visitors about the website's use of tracking cookies and similar tracking technologies, and to obtain consent for collecting and processing personal data.

These banners can take various forms, from simple notices at the bottom of the screen to full-page overlays. And they’ve become increasingly sophisticated as privacy regulations evolve and user expectations for transparency grow.

This is the cookie banner on the homepage of Maze, a user research testing platform:

And here's ScrapingBee's cookie banner:

And here’s an example of Transcend's consent banner on the Texas A&M collegiate football site:

Some cookie banners are basic, with just a few options, while others are more complex, offering detailed controls and information.

The purpose of cookie banners

While we've all been trained to quickly dismiss them as necessary annoyances in our web browsing experience, cookie banners serve several key functions from a privacy standpoint.

In short, they act as a bridge between website operators and users: facilitating compliance, user privacy protection, and transparency in data collection.

Let's explore the three main purposes of cookie banners in more detail.

1. Legal compliance

Cookie banners have become ubiquitous to the web browsing experience, largely due to data privacy laws. They help websites comply with various data protection regulations, including:

• The General Data Protection Regulation (GDPR) in the European Union
• The California Consumer Privacy Act (CCPA) in the United States
• The Personal Information Protection and Electronic Documents Act (PIPEDA) in Canada

These laws require websites to inform users about their data collection practices and, in many cases, obtain explicit consent before collecting non-essential data.

Cookie banners are a practical way to meet these legal obligations, helping businesses avoid hefty fines and legal complications.

2. User privacy protection

Beyond legal compliance, cookie banners protect user privacy by:

1. Informing users about data collection practices
2. Providing users with choices regarding their data
3. Allowing users to opt-out of non-essential tracking
4. Empowering users to make informed decisions about their online privacy

By giving users control over their data, cookie banners help foster a more respectful and trustworthy digital environment.

Cookie banners are not just about compliance—they're an opportunity to build trust.

3. Transparency in data collection

As privacy fines and violations continue to make headline news, users are demanding more and more transparency in how their data is used.

Cookie banners support transparency by:

1. Disclosing the types of cookies and tracking technologies used
2. Explaining the specific purposes for which data is collected
3. Identifying third parties who may receive user data
4. Providing links to more detailed information (e.g., cookie policies, privacy policies)

Importantly, data privacy best practices emphasize the principle of data minimization and purpose specification. This means that organizations should:

• Collect only the data necessary for a specific, declared purpose
• Clearly communicate this purpose to users
• Use the data only for the stated purpose

For example, a cookie banner might specify that certain cookies are used "to analyze site traffic patterns" or "to remember your login preferences."

This level of specificity not only complies with regulations but also builds trust by showing users their data is being collected and used responsibly.

Do you need a cookie banner on your website?

The short answer is: It depends.

Whether or not you need a cookie banner is determined by several factors, including the type of cookies you use, the data you collect, and the laws that apply to your website and audience.

Let's break this down:

When you likely need a cookie banner

• You use non-essential cookies: If your website uses any cookies beyond those strictly necessary for its operation (such as analytics, advertising, or functionality cookies), you likely need a cookie banner.
• You collect personal data: If you gather any information that could identify an individual user, either directly or indirectly, a cookie banner is usually required.
• You serve users in the EU or California: If your website is accessible to users in these regions, you're subject to GDPR or CCPA, which generally require cookie consent mechanisms.
• You use third-party services: Many third-party tools (like Google Analytics, social media plugins, or ad networks) use cookies, which means you'll need a banner.

When you might not need a cookie banner

• You only use strictly necessary cookies: If your site only uses essential cookies required for basic functionality (like remembering items in a shopping cart), you might not need a banner. However, it's still good practice to inform users.
• Your website is purely informational: If your site doesn't collect any user data or use any cookies at all, you might not need a banner. This is rare for modern websites, though.
• You don't serve users in regions with strict privacy laws: If you can genuinely ensure your site isn't accessed by users in regions like the EU or California, you might not be subject to their regulations.

The absence of a cookie banner doesn't necessarily mean you're non-compliant, and the presence of one doesn't automatically make you compliant.

The key is to understand your specific situation and implement a solution that fits.

Do you need a cookie banner if you don't use cookies?

Even if you don't use cookies, you might still need some form of privacy notice. Here's why:

• Other tracking methods: Websites can track users without cookies (e.g., local storage, web beacons, pixels, etc.). Privacy laws often treat these methods the same as cookies.
• Data collection without tracking: Your site might collect data through forms, account creation, or server logs. This data collection often requires user notification.
• Legal Requirements: Laws like GDPR focus on all personal data, not just cookies. If you collect any personal data, you usually need to inform users.

If you don't use cookies but collect data, consider:

• A privacy policy link in your website footer
• A simple notification about your data practices
• A pop-up on first visit explaining your privacy approach

Legal landscape and requirements

Different regions have implemented various laws to protect user privacy, with significant implications for cookie usage and consent management.

Let's explore two of the most influential privacy regulations and how they relate to cookie banners and cookie compliance.

Scope

GDPR: All organizations processing EU residents' personal data regardless of company location

CCPA: For-profit entities doing business in California that meet certain thresholds

Consent Approach

GDPR: Opt-in—Must be freely given, specific, informed, and unambiguous

CCPA: Opt-out—Requires a 'Do Not Sell My Personal Information' link

Consent Requirements

GDPR: Clear affirmative action required. Pre-ticked boxes or implied consent is not compliant.

CCPA: Not explicitly required for data collection but required for selling data of minors under 16.

Cookie banner implications

GDPR

• Explicit opt-in consent for non-essential cookies
• Easy refusal option required
• Granular control recommended

CCPA

• Not explicitly required
• Often used to comply with notice requirements
• Must inform about data categories and purposes

Transparency

GDPR: Clear information about data collection purpose and data subject rights.

CCPA: Must inform users about categories of personal information collected and purposes

User Rights

GDPR: Rights to access, correction, erasure, restriction, portability, and objection

CCPA: Rights to access, delete, and opt out of the sale of personal information.

Penalties

GDPR: Up to €20 million or 4% of global annual turnover, whichever is higher

CCPA: Up to $7,500 per intentional violation, $2,500 per unintentional violation

What states require a cookie banner?

Currently, no U.S. state law explicitly mandates the use of a "cookie banner."

However, several states have enacted or are considering privacy laws that effectively require some form of consent mechanism or notice for collecting personal information, which often includes data collected via cookies.

Here's a breakdown of how a few U.S. states approach cookie banners:

California

• Law: California Consumer Privacy Act (CCPA) and California Privacy Rights Act (CPRA)
• Requirement: While not explicitly requiring a cookie banner, businesses must provide notice at collection and a "Do Not Sell My Personal Information" link.
• Effective: CCPA since 2020, CPRA amendments effective since January 1, 2023

Virginia

• Law: Virginia Consumer Data Protection Act (VCDPA)
• Requirement: Requires consent for processing sensitive data and allows consumers to opt out of targeted advertising.
• Effective: January 1, 2023

Colorado

• Law: Colorado Privacy Act (CPA)
• Requirement: Requires consent for processing sensitive data and allows consumers to opt out of targeted advertising.
• Effective: July 1, 2023

Connecticut

• Law: Connecticut Data Privacy Act (CTDPA)
• Requirement: Similar to Colorado, requires consent for processing sensitive data and opt-out rights for targeted advertising.
• Effective: July 1, 2023

Utah

• Law: Utah Consumer Privacy Act (UCPA)
• Requirement: Less stringent than others, but still requires notice and opt-out rights for certain data processing.
• Effective: December 31, 2023

This raises the question: does this apply only to businesses operating within these states, or to any website that has visitors from those states?

Generally speaking, if a business meets the criteria specified in a state's privacy law, it must comply with that law's requirements when dealing with that state's residents.

National brands often need to comply with multiple state laws simultaneously, leading to a "patchwork" approach to privacy compliance.

In order to mitigate all risk, most organizations will often employ the "Highest Common Denominator" principle, abiding by the strictest standards across their entire operation.

Related Post: Preparing for State Privacy Laws in 2024: A Comprehensive Timeline

Key legal requirements for cookie banners

Explicit consent

Explicit consent requires users to take a clear, affirmative action to opt-in to non-essential cookies. This means using unchecked boxes or clear "Accept" buttons and not relying on pre-ticked boxes, implied consent, or continued browsing as a form of consent.

The goal is to ensure that users are making an active, informed decision about their data.

Purpose specificity

Cookie purposes must be clearly defined and communicated, with each category of cookies having a specific, declared purpose.

Vague descriptions, such as "to improve user experience," are not enough. Instead, provide clear explanations for each type of cookie (e.g., analytics, advertising) and how the data will be used.

This specificity ensures users understand exactly what they're consenting to (and supports greater compliance with relevant data privacy laws).

Intelligible language

Information in cookie banners must be presented in clear, plain language that the average user can easily understand. Avoid technical jargon or legal terminology, and use concise, straightforward explanations.

Consider using layered information, with brief initial descriptions and options to learn more, ensuring that essential information is easily accessible and comprehensible.

Freely given consent

Users must have a genuine, free choice about whether to accept cookies, without any negative consequences for declining. We call this explicit consent or explicit user consent.

This means the definition of consent should be unbundled from other terms, making it easy to find and understand. It also means that refusing consent shouldn't result in reduced quality of service and that a user should be able to withdraw their consent at any time.

Implement this by avoiding cookie walls, providing an easy way to manage consent and communication preferences, and ensuring "Reject all" options are as prominent as "Accept all" options.

Anatomy of an effective cookie banner

An effective cookie banner should balance legal compliance with user experience. This means mastering both first-layer components and second-layer components.

Here's a breakdown of the key components:

First-layer components

First layer components refer to the elements that are immediately visible when a cookie banner appears on a website.

These components provide essential information and options to users at a glance—without requiring them to click through to additional pages or expand the banner.

• Clear purpose statement: A brief explanation of why cookies are used. For example, "We use cookies to improve your browsing experience and analyze site traffic."
• Opt-in and opt-out options: Clearly labeled buttons for accepting or rejecting cookies, such as:
  1. "Accept All" button
  2. "Reject All" or "Decline" button
  3. "Customize" or "Manage Preferences" option
• Link to privacy policy: A hyperlink to the website's full privacy policy. For example: "Read our Privacy Policy for more details"
• Cookie settings access: Option to view more detailed information or customize preferences, often labeled as "Cookie Settings" or "Manage Preferences."

Second-layer components

Second-layer components are the more detailed elements of a cookie banner that users can access by clicking on options like "Customize" or "Manage Preferences" from the first layer.

Here are the second-layer components from the Helix Sleep website:

These components provide in-depth information and granular control over cookie preferences.

• Detailed cookie categories: Detailed cookie categories provide a comprehensive list of the types of cookies used on the website, typically including necessary, functional, analytics, and advertising cookies. Each category is accompanied by a brief explanation of its purpose, helping users understand the role of different cookies in their browsing experience.
• Granular consent options: Granular consent options allow users to selectively accept or reject specific categories of non-essential cookies, usually through toggle switches or checkboxes. This feature empowers users to make nuanced decisions about their data, enabling them to, for example, accept analytics cookies while rejecting advertising cookies.
• Purpose explanations: Purpose explanations offer detailed information about how each cookie category is used, often including specific examples of data collected and its intended use. These explanations help users make informed decisions by clearly outlining the implications of accepting each type of cookie, thereby enhancing transparency and building trust.

Related Post: A Marketer’s Guide to the Cookieless Future

UX best practices for cookie banners

A well-designed cookie banner can enhance user experience while ensuring legal compliance—it doesn't have to be one or the other.

Here are some design considerations when it comes to cookie banners:

Clear and concise language: Use straightforward, jargon-free text that all users can easily understand, avoiding legal terms that might confuse or intimidate visitors.

Visible but non-intrusive placement: The placement of your cookie banner should strike a balance between visibility and unobtrusiveness. Position it where it's easily noticeable without obscuring important content. Maybe consider a subtle animation to draw attention without disrupting the user's experience.

Accessibility: Make sure your cookie banner is usable for all visitors, including those with different abilities. Make your banner navigable via keyboard, compatible with screen readers, and use sufficient color contrast and appropriate font sizes.

Clear call-to-action: A clear call-to-action guides users towards making a decision about their cookie preferences. Make primary actions (Accept, Reject, Manage Preferences) stand out and use action-oriented language for buttons.

Persistent access to choices: Make it easy for a user to change their preferences down the road shows respect for their choices and complies with regulations. Consider including a small, non-intrusive "Cookie Settings" button that remains visible after the initial choice is made.

Transcend's Consent Management Platform offers customizable, user-friendly cookie banner templates that adhere to UX best practices while ensuring legal compliance.

With features like clear language options, responsive design, granular controls, and accessibility support, Transcend helps businesses create cookie banners that not only meet regulatory requirements but also provide a smooth, intuitive experience for users.

Consent withdrawal best practices

Withdrawing consent should be as straightforward as giving it. Users should be able to access their current settings and make changes with just a few clicks.

Not only that, but opt-out consent should be granular—meaning users should have the ability to withdraw consent for specific categories of cookies rather than just a blanket withdrawal.

And once a user withdraws consent, the change should take effect immediately. This means stopping data collection and deleting any non-essential cookies.

Dark patterns in cookie banners and how to avoid them

Dark patterns are design choices that manipulate or deceive users into making decisions they might not otherwise make. In the context of cookie banners, dark patterns can lead users to give broader consent than they intended or make it difficult to refuse non-essential cookies.

Vague or misleading language

What it is: Using unclear, ambiguous, or deceptive wording that doesn't accurately convey the implications of the user's choices.

How to avoid:

• Use clear, straightforward language that accurately describes what cookies do and how they're used.
• Avoid technical jargon or overly complex explanations.
• Be specific about the purposes of different cookie types.

Example: Instead of "We use cookies to enhance your experience," use "We use analytics cookies to understand how you use our site, which helps us improve our services."

Lack of granular control

What it is: Offering only all-or-nothing choices, or making it difficult for users to select specific cookie categories they're comfortable with.

How to avoid:

• Provide clear, easy-to-use toggles or checkboxes for different cookie categories.
• Ensure the option to manage preferences is as prominent as the “Accept All" button.
• Allow users to easily update their choices at any time.

Example: Include clearly labeled toggles for categories like "Necessary," "Functional," "Analytics," and "Marketing" cookies—with the ability to accept or reject each independently.

Pre-ticked consent boxes

What it is: Automatically selecting checkboxes to accept non-essential cookies, requiring users to actively opt-out rather than opt-in. This is one of the more pernicious dark patterns and it should definitely be avoided.

How to avoid:

• Ensure all non-essential cookie categories are unchecked by default.
• Only pre-select strictly necessary cookies.
• Make the current state of each option clear and easy to understand.

Example: Present unchecked boxes for all non-essential cookie categories, with only the "Necessary" category pre-selected and unable to be unchecked.

Avoiding dark patterns isn't just about ethical design—it's often a legal requirement. Many privacy regulations, including GDPR, explicitly prohibit these practices.

Implementing cookie banners in your organization

By now, you thoroughly understand the importance of cookie banners in protecting both your organization and your customers. So where do you begin?

Implementing cookie banners is important, but it's most effective when integrated into a comprehensive privacy strategy.

Here's how to approach this, step-by-step:

Step 1: Audit your data collection practices

Just like most things in life, you can't get to where you want to go unless you first audit where you are now. This means conducting a thorough audit of all cookies and tracking technologies used on your website.

Identify which cookies are essential for your site's functionality and which are used for analytics, advertising, or other non-essential purposes.

This audit will not only inform your cookie banner design but also help ensure you're only collecting necessary data and adhering to data minimization principles.

Step 2: Develop a privacy policy

Create a clear, comprehensive privacy policy that accurately reflects your data collection and usage practices. This policy should explain in plain language what data you collect, how you use it, who you share it with, and how users can control their data.

Ensure that your privacy policy is easily accessible from your cookie banner and is regularly updated to reflect any changes in your data practices or applicable laws.

Step 3: Choose a Consent Management Platform (CMP)

Select a robust Consent Management Platform that can handle both cookie consent and broader privacy management tasks.

Look for a platform like Transcend that offers comprehensive privacy infrastructure, including solutions for preference management, data mapping, automated privacy request fulfillment, assessments, and more.

A good CMP should be flexible enough to adapt to changing regulations and able to scale with your business needs.

Related resource: 5 Steps for Identifying an Effective CMP

Step 4: Design your cookie banner

Create a cookie banner that follows all the UX best practices and legal requirements we've explored in this post. Ensure the banner is clear, concise, and provides users with genuine choice.

Include options to accept or reject non-essential cookies, as well as a way to access more granular controls. The banner should integrate seamlessly with your website design while still being noticeable enough to ensure user engagement.

Step 5: Monitor and update

Regularly review and update your privacy practices to ensure ongoing compliance. Stay informed about changes in privacy laws and adjust your practices accordingly.

Use analytics from your CMP to understand how users interact with your cookie banner and make data-driven improvements. Conduct periodic audits to ensure that your actual data collection practices align with your stated policies.

Step 6: Integrate with other privacy processes

Connect your cookie consent management with other privacy-related processes, such as handling data subject access requests or managing email marketing preferences.

Ensure a consistent privacy experience across all user touchpoints. This holistic approach not only improves compliance but also builds trust with your users by demonstrating a comprehensive commitment to data privacy.

Using Transcend to manage cookie consent

Transcend is a next-generation platform for privacy and data governance. Encoding privacy at the code layer, we provide solutions for any privacy challenge your teams may be facing—including implementing compliant cookie banners and adapting to new privacy legislation across various jurisdictions.

From Consent Management to DSR Automation to a full suite of data mapping solutions (Data Inventory, Silo Discovery, Structured Discovery, and more), Transcend has you covered as your company grows and evolves in a swiftly changing regulatory environment.

Cookie banner FAQs

How can I create a GDPR-compliant cookie banner?

To create GDPR compliant cookie consent banners, ensure they include clear information about cookie usage, obtain explicit user consent before setting non-essential cookies, offer granular control over cookie preferences, and provide an easy way to withdraw consent.

Use clear language and make the "accept" and "reject" options equally prominent.

What are third-party cookies?

Third-party cookies are created by domains other than the one you're visiting. They're typically used for cross-site tracking, advertising, and retargeting. These cookies typically require explicit consent under privacy regulations like GDPR.

Are cookie consent banners legally required?

In many jurisdictions, cookie consent banners are legally required. Laws like GDPR in the EU and CCPA in California mandate that websites obtain users' consent before collecting personal data through cookies, especially for non-essential purposes.

How often should I ask for cookie consent?

Generally, you should ask for cookie consent on a user's first visit and when you make significant changes to your cookie policy.

However, you should also provide an easy way for users to review and change their preferences at any time.