After the Federal Supreme Court (BGH) and the European Court of Justice (ECJ), the Rostock Regional Court has now dealt with tracking cookies.
Are tracking cookies only permitted with consent?
In accordance with the case law of the Federal Court of Justice and the European Court of Justice, the Rostock Regional Court has now unsurprisingly ruled that cookies may only be used for advertising and analysis purposes with the prior, informed and voluntary consent of the user.
This means that you may not use cookies for advertising and analysis purposes on
your websites and in your online shops without the express consent of the users.
Furthermore, the Regional Court found that the consent to the use of certain cookies may not be pre-ticked in a cookie banner. This was confirmed by the ECJ in its judgment of 11.11.2020 - C 61/19 (Orange Romania).
So far so good and so well known.
However, the Rostock Regional Court still emphasised one aspect which, to our knowledge, has not yet been assessed in case law.
Do buttons in the cookie banner have to be displayed in a neutral colour?
Often in cookie banners, the button with the consent to the use of all cookies (Accept all cookies) is visually clearly highlighted and the button with "Only allow technically necessary cookies" is presented very subordinately.
This often leads to users of Internet pages not reading the buttons or not reading them correctly. Therefore, the visually highlighted button with "Accept all cookies" is often clicked.
In the opinion of the judges of the Rostock Regional Court, clicking on a clearly highlighted cookie therefore does not constitute legally effective consent.
This means that, in the opinion of the Rostock Regional Court, many of the cookie banners currently in use are not suitable for obtaining legally effective consent with, as they clearly highlight the button "Accept all cookies".
It remains to be seen whether this case law of the Rostock Regional Court will prevail. The decision is not yet legally binding
Our recommendation: Adapt your cookie banner if necessary.
We recommend that you adapt your cookie banner to the case law of the Rostock Regional Court. You should design all buttons in the cookie banner in the same way and not highlight any button visually and/or use a signal colour. If your cookie banner is designed in such a way that you must visually highlight one button of the cookie banner, visually highlight the most data protection-friendly button with "only allow technically necessary cookies".
Source: Judgement of the Rostock Regional Court of 15.09.2020, 3 O 762/19 (not legally binding)
For questions and explanations on the subject of cookies, consent and the like, please do not hesitate to contact us.
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
