Federal court of justice: cookies only with active consent

Federal Court of Justice: Cookies only with active consent

Website operators can not simply ame the consent to store third-party cookies from third-party providers without explicit consent to users. In a long-awaited decision, the Federal Court of Justice (BGH) decided on Thursday within the meaning of the Consumer Center of Bundesverband, who had complained against the Chuckspieler Planet49.

Telephone advertising and cookies

Specifically, it was about two facts: On the one hand, Planet49 had raised the approval of cookies by preserving the users a pre-elected checkbox. If the users did not explicitly turn off the field, the provider went from a granted consent. In addition, consent to invasive advertising acceptors as advertising calls has been extended by the competition participants.

In both cases, the Karlsruhe judges decided in the sense of complaining consumer protection. Both for telephone advertising as well as for passing on a cookie ID to third-party companies, it lacks an effective consent of consumers. Such a lie first before "If the consumer woman is that his explanation represents a consumer and what they relate", it is called in the message of the court. Although the raffle participants in a dialogue could also with which sponsors they wanted to share data – this information could only be seen after further clicks.

European law dimension

The verdict was particularly explosive, as Germany had a special way in terms of cookies. The German Telemedia Act had not fully implemented the requirements from the European law. Episode: Many German providers only measured their clients to contradict the storage of cookies by opt-out – if overhead. If the corresponding cookie warnings were ignored, the consent was given as granted.

Especially after the entry into force of the European Privacy Policy Regulation and the necessary captain in German law, a conflict was shown here: How can approval be amed if users seek appropriate instructions?

To hedge the own interpretation, the Federal Court of Justice had called several questions to the European Court of Justice to clear the European law dimension of the case. The answer from Luxembourg came in October: Only if users expressly agreed and informed in detail, advertising cookie data is also shared with third parties. However, if the German law contradicts the EU specifications, the Luxembourg Richter did not explicitly determine.

Against the spirit of the law

The Federal Court of Justice also sees an explicit opposition between the European and German legislation. So the procedure of the competition provider has already been inadequate after the legal situation of 2018 before 2018, as it "with essential basic ideas of § 15 Abs. 3 sentence 1 TMG incompatible" has been.

The fact that the German law lacked implementation rules on EU directives was not crucial here: "Because it is to be amed that the legislature considered the existing legal situation in Germany for directory compliance", It’s been from Karlsruhe. The wording of the provision is a corresponding interpretation that the judges have now. If you go from the alleged legal situation, you come to the same result.

Although the judgment applies only to the specific dispute, a broad effect is to be expected. Already in advance of the decision, many German website operators have changed their cookie warnings, so users explicitly agree to data processing. In parallel, counterparts of browser manufacturers like Apple did that the use of third-party cookies is retained and further reduced. Nevertheless, the Federal Government announced a Neufang of the Telemedia Act in the past fall, which can now be brought on the way after the judgment of Karlsruhe.

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