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