I’m not a lawyer, but I’d say that’s a case for implied consent.
Typical example is when you’re shopping and you hand the cashier the money that they’re asking for, then that counts as an agreement to a contract. You don’t have to explicitly say that you’d like to buy the wares for that price.
With the dark mode button, I’d expect the same. You’re very likely cool with them storing your preference, specifically for providing you with dark mode (not for tracking et al). So, pressing the button would presumably suffice as consent for that.
The wording of the law requires in general that the user be given a chance to decline information storage - “implied consent” is not an opportunity to decline. The exception is if the “information society service” is “explicitly requested by the user.” Again there is no opportunity for implied consent because the request must be explicit.
The only argument I can see is to attempt to subdivide the service offered by a website and call “dark mode” its own service. That seems clearly not to be the meaning here.
It’s worth saying that the ePrivacy directive binds legislatures; it’s not the law that website owners have to follow. Member states wrote their own laws to comply with it, but obviously those laws are going to conform to the general principles.
I’m not a lawyer, but I’d say that’s a case for implied consent.
Typical example is when you’re shopping and you hand the cashier the money that they’re asking for, then that counts as an agreement to a contract. You don’t have to explicitly say that you’d like to buy the wares for that price.
With the dark mode button, I’d expect the same. You’re very likely cool with them storing your preference, specifically for providing you with dark mode (not for tracking et al). So, pressing the button would presumably suffice as consent for that.
The wording of the law requires in general that the user be given a chance to decline information storage - “implied consent” is not an opportunity to decline. The exception is if the “information society service” is “explicitly requested by the user.” Again there is no opportunity for implied consent because the request must be explicit.
The only argument I can see is to attempt to subdivide the service offered by a website and call “dark mode” its own service. That seems clearly not to be the meaning here.
It’s worth saying that the ePrivacy directive binds legislatures; it’s not the law that website owners have to follow. Member states wrote their own laws to comply with it, but obviously those laws are going to conform to the general principles.