Federal Court of Justice rules: Cookies may only be placed with users’ active consent

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Anyone wishing to place cookies on internet sites for advertising purposes may only do so with the user’s active consent. Preset ticks for cookie consent are not sufficient for this purpose. This has been confirmed by the Federal Court of Justice (FCJ) in its ruling from 28th May 2020 in the case brought by the Federation of German Consumer Organisations (German: Verbraucherzentrale Bundesverband) against the company Planet49.

FCJ’s ruling ends years of legal uncertainty

The decision from the FCJ brings much longed-for clarity in the matter of “cookies for creating user profiles for advertising or market research”. In doing so, the FCJ follows the judgement of the European Court of Justice (ECJ). Following a preliminary ruling issued by the ECJ in October 2019 (after presentation by the FCJ regarding the format of consent), it is now abundantly clear that only active consent given by the user represents a valid legal basis for the processing of personal data.

The FCJ confirms:

Pre-ticked boxes are not sufficient for obtaining valid consent.

Anyone wishing to place cookies on internet sites for advertising purposes must obtain the user’s active consent at all times. However, another latest development is that the FCJ does not currently see any need to amend the German Telemedia Law (TMG). Section 15 Par. 3 TMG is, according to the FCJ, sufficiently interpretable for compliance with legal guidelines, even if by a very narrow margin. For website operators the result is the requirement to obtain valid and therefore active consent. The unexercised right to object as stipulated in Section 15 Par. 3 TMG equates, from the FCJ’s perspective, to no valid consent having been given. This means that whereas the TMG could previously be interpreted as requiring the user to simply have the option to object, this is now no longer the case. The user must provide his or her active consent, as invalid consent is tantamount to an objection.

The case of Planet49 – what happened up until now

The case of Planet49 has taken up the time of various courts since 2013. Background: In an online raffle from the company Planet49, pre-ticked boxes consenting to the use of cookies had been placed on the registration page. Users who did not wish to consent had to actively remove the ticks. The Federation of German Consumer Organisations regarded this as illegal and filed a lawsuit. The Higher State Court in Frankfurt am Main saw no legal infringement in its ruling from 2015. The FCJ then requested the ECJ to interpret the EU data protection requirements.

In short, companies wishing to use cookies on their websites for advertising purposes may only do so
with informed, explicit and, above all, prior consent. Pre-ticked declarations of consent do not suffice
for this purpose, according to the FCJ.

A video of today’s ruling can be found here.

Authors: Jana Krahforst, Carolin Weißofner, Theodora Zamanakou, Legal Team Usercentrics

DISCLAIMER

The decision to implement a data protection-compliant CMP is ultimately at the discretion of the data protection officer and/or the legal department. These statements do not constitute legal advice. They merely serve to support and inform you about the current legal situation with respect to the implementation of a CMP solution. Please consult a qualified lawyer should you have any legal questions.