BGH requires active consent for tracking and marketing cookies
In its ruling of 28.05.2020, the Federal Court of Justice (BGH) commented on the requirements for consent for the storage of cookies. This was preceded by a referral to the ECJ.
The results of the BGH in detail
The German Telemedia Act (TMG) also requires consent to be obtained for the setting and reading of cookies for tracking and marketing purposes. The reference to Section 15 (3) of the German Telemedia Act (TMG), which is frequently used by advertisers to justify the permissibility of an opt-out solution for the setting of cookies, does not lead to any other result. On the other hand, the BGH did not follow the argumentation of the German supervisory authorities, according to which the TMG is no longer applicable. According to the BGH, the user’s active consent to the storage and reading of cookies is also required.
This decision has the following implications for practice: simple cookie banners that collect cookies for a variety of third-party providers are not permitted after this. As the ECJ has already stated, active consent of the data subject is required. No consent is to be generated by merely continuing to browse a website. Even pre-ticked fields do not constitute active consent to data processing.
With regard to the requirements of data protection law for consent, the
European Data Protection Board has once again shown how the supervisory authorities envisage consent in concrete terms within the framework of a guidance document dated 04.05.2020.
For questions regarding the specific implementation of consents for tracking or marketing cookies, please do not hesitate to contact us.
Click here for the press release of the BGH.