Germany rules on cookie consent and third party advertising
The Federal Supreme Court follows the CJEU ruling on active user consent which means that a cookie is not valid if it is obtained by using a pre-ticked checkbox. By Katharina Weimer of Fieldfisher, Germany.
On 28 May 2020, the German Federal Supreme Court (Bundesgerichtshof – BGH) issued its ruling on the “Cookie Consent II” trial (reference no. I ZR 7/16), the much-awaited Planet49 decision. Considering the statements previously made by the Court of Justice of the European Union (CJEU), the outcome of this ruling hardly came as a surprise, yet its reasoning certainly did. Now that this reasoning has been published, on 6 July, as well, this article aims to review the ruling and discuss its further impact on business practice.
History of the case
The BGH’s ruling concerned an application for a preliminary injunction filed by the federal association of the consumer protection agencies (Verbraucherzentrale Bundesverband – VZBV) dating back to 2013. The preliminary injunction was issued against the defendant, a company that organises lotteries on the Internet. In September 2013, the defendant held such a lottery and, in this context, included two checkboxes along with associated information texts within the registration process which were aimed at obtaining user consent to advertisements and cookies. These two checkboxes were the target of the VZBV.