Germany BGH Update on Cookie Consent Based on Planet49 Case
This week, the German Federal Court of Justice (BGH) made a decision on consent to cookies. The BGH had suspended the proceedings by decision on October 5, 2017, and submitted questions to the Court of Justice of the European Union (CJEU) regarding the interpretation of Directive 2002/58/EC (data protection directive for electronic communications), Directive 95/46/EC (data protection directive) and the General Data Protection Regulation (GDPR) with regard to the effectiveness of consent to the setting of cookies by using a pre-ticked checkbox.
Following a cookie consent ruling last year, the Planet 49 case, BGH has aligned its decision with the CJEU ruling that cookie consent retrieved by a pre-ticked checkbox is no longer valid and represents an unreasonable disadvantage for the user.
Review of the Planet49 Case
The Planet49 case dates back to 2013 when a company called Planet49 had a promotional lottery in Germany that required users to consent to the storage of cookies before playing the game.
The Planet49 Judgment highlights that it would appear impossible in practice actual consent to the processing of their personal data is the user deselects a pre-ticked checkbox.
As a result, a pre-checked checkbox (when a user must deselect to refuse their consent) is not considered a lawful way to obtain consent for the storage or access of cookies.
While Europe’s ePrivacy reform, a piece of legislation that deals with online tracking, is still waiting for an agreement to be reached on. In the meantime, data controllers in Germany will need to clean up cookie notices to comply with cookie requirements.