Wrong cookie banner = competition infringement

Many website operators are probably familiar with the issue of cookie banners. Some have obviously heard that you need "some" cookie banner. Some have opted for solutions that are illegal. At the same time, a cookie banner that does not comply with the legal requirements constitutes a breach of competition law, as the Regional Court of Cologne recently ruled in preliminary injunction proceedings.

According to the decision of the ECJ of 01.10.2019 (Case C-673/17) and the BGH of 28.05.2020 (Case I ZR 7/16), the user must actively consent to the use of technically unnecessary cookies or tools. This obligation results from the interpretation of Section 15 (3) TMG in conformity with the Directive.

In the case to be decided by the Regional Court of Cologne, the Federation of German Consumer Organisations complained about the following cookie banner:

When entering the website, a cookie banner opened. The user did not have the option of accepting or rejecting cookies via a button on this cookie banner. Rather, the cookie banner only contained the information that the user agrees to the use of cookies by continuing to visit the website. A similar constellation can still be found on many websites.

The Regional Court of Cologne considered the regulation in the cookie banner to be GTC within the meaning of §§ 305 et seq. BGB. However, according to Section 307 (2) sentence 2 BGB, this regulation contradicts the essential basic ideas of the statutory regulation according to Section 15 (3) TMG. According to this norm, the user must actively consent to the setting of cookies or the use of marketing tools. Preset checkboxes are prohibited. Consent by conclusive behaviour, i.e. by simply continuing to use the website, is inadmissible according to the regulation in Section 15 (3) TMG.

A violation of the provisions on general terms and conditions in § 305 et seq. of the German Civil Code (Bürgerliches Gesetzbuch - BGB) leads to a violation of competition that is subject to a warning notice pursuant to § 3a of the Unfair Competition Act (UWG).

Is there a threat of warnings?

Unfortunately, yes. The Federation of German Consumer Organisations (Verbraucherzentrale Bundesverband e.V.) is currently issuing warnings for the use of outdated cookie banners. The Federation of German Consumer Organisations (Verbraucherzentrale Bundesverband e.V.) has an easy time of it. The illegal cookie banner is very easy to find and document.

What can and should you do?

- You should definitely check your cookie banner and adjust it (or have it adjusted).

- If you have received a warning letter from the Federation of German Consumer Organisations (Verbraucherzentrale Bundesverband e.V.), you should not react hastily. Every case is different. It is essential to check whether the claims asserted by the Federation of German Consumer Organisations exist. Once you have issued a cease-and-desist declaration, you are bound to it for life!

- Finally, you should take into account that the Federation of German Consumer Organisations (Verbraucherzentrale Bundesverband e.V.) may have you "in its sights". They may check your website for further alleged violations. In the worst case, your entire website may be at risk.

We will be happy to check your cookie banner for you. Furthermore, we will check possible warnings for you and defend you against unjustified claims. If adjustments are necessary. We will make these for you.

Source: Regional Court of Cologne, order dated 13.04.2021, ref. no. 31 O 36/21

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GoldbergUllrich Lawyers 2021

Julius Oberste-Dommes LL.M. (Information Law)

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Specialist lawyer for information technology law