Enterprises are under rising pressure from regulators, users, and industry changes to implement secure, transparent, and compliant consent management solutions.
Yet, despite increasing enforcement, over 70% of websites are still non-compliant with GDPR, ePrivacy Directive (ePD 5(3)), and PECR.
Studies from the European Data Protection Board (EDPB) and privacy advocacy organizations like NOYB indicate that most cookie banners fall short of legal standards because of tracking before consent, deceptive UI tactics, and poor execution of user choices.
This failure creates both legal and business risks. Companies that rely on third-party Consent Management Platforms (CMPs) often assume they are compliant when, in reality, their solutions may be exposing them to fines, reputational damage, and potential legal action.
Why Most CMPs Are Not Technically Compliant
Many CMPs follow a checkbox approach to compliance, meaning they concentrate more on appearance rather than actual technical enforcement. The most occurring compliance failures include:
- Trackers loading before consent – Many CMPs allow cookies, scripts, and tracking pixels to fire before a user has given explicit consent, violating ePD 5(3), PECR, and GDPR.
- Category-based consent removes explicit choice – Most CMPs classify trackers under broad categories (e.g., "Marketing" or "Analytics"), therefore lowering transparency and likely breaching GDPR's need for explicit, specific consent.
- Failure to enforce consent in real-time – Even when users reject tracking, scripts often continue running in the background.
- Consent data stored on third-party servers – Consent data held on third-party servers: Many CMPs keep user consent data externally, which raises compliance concerns particularly with relation to GDPR cross-border data transfers.
- Focus only on cookies while ignoring other tracking technologies – Fingerprinting, local storage, and behavioral tracking require consent too, yet many CMPs fail to manage these methods.
For companies handling sensitive client data, these problems pose not only compliance concerns but also major security and governance threats.
The Binary Nature of Technical Compliance
Unlike GDPR, which often allows for risk-based assessments, ePD 5(3), PECR, and similar regulations are binary, either tracking is compliant, or it isn’t. If a website loads tracking technologies before consent, it is automatically non-compliant under these laws.
Which means, companies have to implement technical compliance measures going beyond basic checkboxes. True compliance calls for:
- Server-side enforcement of consent – Ensuring that no tracking scripts, cookies, or identifiers load until consent is explicitly given.
- Granular consent per tracker, not just per category – Providing users with control over individual trackers rather than broad categories.
- Real-time enforcement – Reinforcing that changes in consent settings immediately prevent unauthorized tracking.
- First-party storage of consent data – Keeping consent logs inside the corporate infrastructure helps to reduce third-party risks.
- Compliance that goes beyond cookies – Managing fingerprinting, behavioral tracking, and other tech that require consent under modern privacy laws.
Many conventional CMPs fall short of these standards, hence businesses run legal and reputational risks.
ISO 27001, Privacy by Design, and the Risk of Certification Loss
Compliance for companies who have adopted ISO/IEC 27001:2022 and follow Privacy by Design principles isn't just about policies and frameworks but also about demonstrated real-time technical operations.
The latest version of ISO/IEC 27001:2022 Edition 3 emphasizes continuous risk assessment, cybersecurity, and privacy controls. However, regulatory frameworks like the ePrivacy Directive (ePD) Article 5(3) impose a binary technical compliance model, either all tracking technologies are blocked until explicit user consent is obtained, or the system is non-compliant.
This means that even enterprises with a certified Information Security Management System (ISMS) risk losing their ISO 27001 certification if:
- Their website or digital platform fails to enforce web-facing privacy controls (e.g., loading trackers before consent).
- Systemic non-compliance is documented (a consistent failing rather than a one-off error).
- They cannot give real-time evidence of compliance to auditors, as ISO certification bodies need live monitoring logs and automated reporting.
Why Technical Non-Compliance Threatens ISO 27001 Certification
ISO 27001 certification depends on an organization’s ability to continuously control and reduce risks. If privacy violations become systematic rather than one-off mistakes, certification auditors may determine that the ISMS is fundamentally defective. This might cause:
- Regulatory fines and enforcement actions due to non-compliance with ePD 5(3), GDPR, and PECR.
- Reputational damage and loss of trust from customers, partners, and investors.
- Potential revocation of ISO 27001 certification, as documented non-compliance contradicts Privacy by Design principles.
Why Enterprises Need a Fully Custom CMP
AesirX redefines Consent Management by providing customizable, enterprise-grade solutions designed to fit an organization’s specific needs. Unlike generic CMPs, AesirX gives:
- A truly first-party integration – Ensuring all tracking technologies comply with regulations before they load.
- 100% white-labeled solutions – So that businesses own their compliance experience free from reliance on third-party CMP branding or external platforms.
- Granular, transparent consent mechanisms – Providing users with full control over individual trackers, not just broad categories.
- No reliance on third-party servers – Keeping consent data within a company’s own infrastructure, reducing compliance risks and external dependencies.
- Seamless brand integration – Customizable consent interfaces that align with a company’s branding and UX, rather than disrupting the user experience.
- Global compliance adaptability – Configurable solutions for GDPR, ePD, PECR, CCPA, LGPD, and other privacy frameworks, ensuring compliance in different regions.
- Full coverage beyond cookies – Managing fingerprinting, local storage, session tracking, and behavioral data collection for complete compliance.
- ISO 27001 alignment and certification retention – So that consent management processes adhere to ISO 27001 standards, fulfilling compliance with documented security and privacy controls to avoid certification risks.
We’re also introducing category-based consent, but implemented correctly, ensuring that users retain full transparency and explicit control, rather than using it as a compliance loophole.
The Future of Enterprise Consent Management
With privacy regulations becoming more stringent and enforcement actions increasing, enterprises that rely on generic, third-party CMPs are exposing themselves to legal, financial, and reputational risks.
AesirX provides a fully customized, first-party consent management solution that ensures real technical compliance while integrating seamlessly into an enterprise’s digital ecosystem.
If your company is serious about getting consent management right, let's connect. Privacy compliance isn’t just about avoiding fines, it’s about building trust and securing long-term business success.
Ronni K. Gothard Christiansen
Technical Compliance Expert & CEO of AesirX.io
Concerned about your website’s compliance?
Take control of your website's compliance today. Use the AesirX Privacy Scanner to identify potential GDPR and ePrivacy Directive violations and proactively protect your brand and user trust, it's free and the full report is available for download.
For more on third-party risk and CMPs Read: Consent as a Service: Why Third-Party Solutions Lead to Non-Compliance.
