Blog 4 minutes 6/04/20

Germany BGH Issues Cookie Consent Ruling

On May 28, 2020, the Federal Court of Justice (BGH) issued its decision on the so-called Planet49 case, which concerns consent to direct advertising and the use and storage of cookies. 

The BGH suspended the proceedings by decision of October 5, 2017 and raised questions to the Court of Justice of the European Union (CJEU) on the interpretation of Directive 2002/58 / EC (data protection directive for electronic communications), Directive 95/46 / EC (data protection directive) and of the General Data Protection Regulation (GDPR) with regard to the effectiveness of consent to the setting of cookies by using a preceding check box. 

After the CJEU made its decision in October last year to interpret the guidelines in the Planet49 case, the BGH was now able to rely on the CJEU ruling, according to which a cookie consent obtained by checking the checkbox is no longer valid. In addition, the BGH decided that such a procedure is an unreasonable disadvantage for the user. 

Review of the Planet49 Case  

The Planet49 case dates back to 2013 when Planet49 organized an online competition in Germany. Before participating, users had to actively object to the storage of cookies by unchecking the checkbox – otherwise cookies were automatically set to analyze usage behavior. 

The Planet49 judgment emphasizes that in practice it appears impossible to obtain valid consent by not deselecting a pre-filled box – the processing of the data collected in this way represents an unreasonable disadvantage for the user. 

As a result, a box that has already been checked (if a user has to actively refuse consent) is not considered to be a lawful way of obtaining consent to store or access cookies. 

In addition, the BGH ruled that Section 15 (3) of the Telemedia Act (TMG) conforms to the directive within the meaning of Article 5 (3) No. 1 of the Data Protection Directive for Electronic Communication (ePrivacy Directive) in such a way that the use of cookies to create User profiles for advertising or market research purposes require the consent of the user. 

The consent must comply with the requirements of the GDPR. This means that it must be given explicitly, for the specific purpose and actively. 

Effects of the Judgement  

There is a clear discrepancy between the DSK and the BGH on the question of how the BGH decision fits into the instructions issued by the German data protection conference (“DSK”) of the supervisory authorities for telemedia providers in March 2019. 

The DSK assumed that § 15 Paragraph 3 TMG does not represent an implementation of the European requirements and questioned the applicability of the provisions of Section 4 of the TMG since the GDPR became applicable. The BGH has now decided in exactly the opposite direction and thus takes a different view than the DSK. 

What’s Next? 

While we are waiting for the reform of the ePrivacy Directive (a law that deals with online tracking), those responsible for data processing in Germany have to clean up their cookie information in order to meet the BGH’s requirements for consent to cookies. Specifically, this means that when creating a cookie banner, the requirements for effective consent should be taken into account and implemented. 

How OneTrust PreferenceChoice Can Help  

At OneTrust PreferenceChoice, we help companies get legal consent to cookies and other tracking technologies. With extensive design options and AI-supported analyzes, we support you in increasing consent rates and at the same time complying with legal requirements. This is important not only for compliance purposes, but also to strengthen the trust of website visitors and consumers. 

OneTrust PreferenceChoice is the leading CMP on the market and officially approved IAB Europe TCF v2.0 CMP for both web and mobile. You can access our free CMP builder here or request a 1:1 demo with an expert! 

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