Take-Aways (AI)
- The BGH decides that the setting of cookies to create user profiles for advertising or market research generally requires express consent.
- Consent may not be concealed in general terms and conditions or obtained through preset checkboxes; it must be given actively and freely.
Update (12.08.20): The full text is e.g. here available.
Yesterday, the German Federal Court of Justice (BGH) handed down its ruling in the case of Planet49 ( I ZR 7/16) (which was referred to the ECJ decision in the case of Planet49 had led).
So far only the Media release available. It states that
- the setting of Cookies at least then a Consent if these are used to create user profiles for advertising or market research. This does not follow from the GDPR, but from a Directive-compliant (and legally creative) interpretation of the German Telemedia Act (i.e., compliant with Art. 5(3) of the e‑Privacy Directive, according to which cookies that are not “strictly necessary” require consent);
- this consent not in GTC because such consent would constitute an “unreasonable disadvantage” (i.e., from a Swiss perspective, it would be abusive in the sense of the content control under unfair competition law);
- a consent also not by preset checkbox can be obtained, and already before the GDPR could not;
- this legal situation has not changed as a result of the GDPR.
In Germany, it is thus clear that at least certain cookies always require consent, even if no personal data should be processed via these cookies, and that this consent can only be given actively.
Comments on the judgment have e.g. Simon Assion authored