Cookies - Basically only permissible with active consent

The Federal Supreme Court (BGH) has dealt with the cookie issue in a long-awaited ruling.

Unsurprisingly, it decided that a pre-set checkbox on a website is not sufficient for consent to the storage of advertising cookies. A provider of a competition had attempted to place cookies in this way to evaluate the user's surfing behaviour. Because of this practice, the Federal Association of Consumer Organisations had brought an action for an injunction. This has now been successful in the final instance. You can read the press release of the BGH HERE.

Referral by the ECJ

The BGH had in the meantime referred the case to the European Court of Justice. The ECJ had already ruled in October 2019 that consent to the storage of cookies cannot be obtained by means of a pre-set checkbox. The ECJ's decision led to considerable displeasure among website operators and advertisers because consent to the storage of cookies can only be realised in a technically sensible way via a so-called cookie banner.

Now, at first glance, one might think that with the ruling of the Federal Supreme Court, there is finally clarity in the matter of cookies. At second glance, however, not everything is clear.

For which cookies is consent required?

Similar to the ECJ, the BGH is of the opinion that consent is not required for the storage of technically necessary cookies. However, the BGH does not provide criteria for the term technically necessary cookies. Further rulings on this are likely to follow in the future.

Is consent required for all "advertising cookies"?

The BGH does not explicitly state that consent is required for the storage of advertising cookies. However, many lawyers "read" this into the BGH's ruling. So far, only a press release of the BGH is available. Presumably, the reasons for the ruling will shed light on what exactly the BGH meant.

When is a cookie technically necessary?

So the big question is, when is a cookie technically necessary? For some cookies it is clear. All cookies that are needed for the online shop to run properly are technically necessary. But what about analysis tools? Are these marketing tools = consent required? Or are they technically necessary tools, as they are also used to check whether the shop is running properly = consent is not required?

We hope the reasons for the judgement will shed further light on these and other questions.

Does every website need a cookie banner?

It should be noted, however, that the cookie banner, which is "not very popular" with many online shop operators and marketing specialists, will remain with us even after the BGH ruling. 

We will stay on the ball for you on this topic!

With kind regards

GoldbergUllrich Attorneys at Law

Michael Ullrich, LL.M. (Information Law) Specialist Lawyer for Information Technology Law