Internet users must actively consent to the use of cookies

02.06.2020

Internet users must actively agree to the use of cookies. Otherwise, there is no consent given in accordance with data protection regulations.

According to today’s ruling by German Federal Court of Justice (BGH) (BGH, judgement of 28.05.2020 – I ZR 7/16), the active participation of the user is required under the provisions of data protection law. However, obtaining consent by means of a pre-checked checkbox does not meet these requirements.

The background to the legal dispute was the design of the declaration of consent used by an online lottery provider. The provider used a declaration of consent for cookie storage on its website, where consent was given via a pre-checked checkbox. Users thus agreed to receive personalised advertising via the use of cookies on the websites of advertising partners. They were also given the option to remove the checkmark in order to refuse consent.

In the context of a preliminary ruling procedure initiated by the BGH (BGH, decision of 05.10.2017 – I ZR 7/16), the European Court of Justice (ECJ) had already decided that the European provisions must be interpreted as meaning that the consent referred to in those provisions is validly constituted if, in the form of cookies, the storage of information or access to information already stored in a website user’s terminal equipment is permitted by way of a pre-checked checkbox which the user must deselect to refuse his or her consent (ECJ, judgement of 01.10.2019, C-673/17 – PLANET49).

The Federal Court of Justice now based its decision on this interpretation of the European legal provisions and decided the case based on the then applicable legal situation, i.e. prior the introduction of the General Data Protection Regulation (GDPR) in May 2018. According to the BGH, the legal situation, however, has not changed with the introduction of the GDPR.

The previous court (OLG Frankfurt am Main, judgment of 17.12.2015 – 6 U 30/15) had not seen any infringement of data protection law in the required removal of a pre-checked checkmark by users. The BGH as the appellate court has now disagreed with this view of the lower court.

Thomas Hertl                                    Tobias Happel

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