According to the BGH, tracking cookies are now only permitted with effective consent.

On its website, the defendant had used pre-set checkboxes to ask for consent to a web analytics service that uses cookies to enable the evaluation of browsing and usage behaviour on websites of advertising partners and thus interest-based advertising. The ECJ had stated in this regard in its preliminary ruling C 673/17 of 01.10.2019 that “the storage of information or access to information already stored in a user’s terminal equipment [e.g. cookies] is only permitted if the user concerned has given his consent on the basis of clear and comprehensive information (…).”

In this regard, the BGH now states in its judgment I ZR 7/16 of 28 May 2020 “that the consent of the user is required for the use of cookies to create user profiles for the purposes of advertising or market research.” The court also confirms that there is no effective consent if the storage of or access to information in the user’s computer “is permitted by means of cookies by means of a pre-set checkbox which the user must deselect in order to refuse consent.”

The BGH thus put an end to the discussion about the lack of transposition of Directive 2002/58/EC into German law. Since it can be assumed that the legislator considered the existing legal situation in Germany to be in conformity with the Directive and saw the consent requirement under EU law implemented, there is nothing to prevent the interpretation of Section 15 (3) sentence 1 TMG in conformity with the Directive. With this ruling, the setting of tracking cookies for advertising purposes and market research is only possible with the prior express consent of the users. If such cookies are used on websites (e.g. by using web analytics services), the cookie opt-in must be requested from the user in advance. In doing so, it must be noted:

  • Cookies may only be set after consent has been obtained. Simply continuing to surf, e.g. in the context of an information banner, does not constitute effective consent;
  • the cookie opt-in banner must be able to suppress the activation of local and third-party cookies unless the user has given consent;
  • Pre-checked boxes for in the selection of cookies to be used are not effective consent.

More information at:
Pressemitteilung des Bundesgerichtshof Urteil vom 28. Mai 2020 – I ZR 7/16 – Cookie-Einwilligung II

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