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How Does Your Cookie Crumble?

by Rebecca Hull

Invicta Law’s Rebecca Hull looks at the CJEU Judgment on a case regarding cookies and consent to cookies in Germany.

In 2019, the CJEU issued its Judgment on a case regarding cookies and consent to cookies. Bundesverband der Verbraucherzentralen und Verbraucherverbände – Verbraucherzentrale Bundesverband eV v Planet49 GmbH (Case C-673/17) EU: C:2019:801.

The Case

The case related to a dispute between a German consumer protection organisation and a company that organised online lotteries in Germany. The lottery organiser required users to register to its website to access the lottery. On the registration form were two tick boxes.

The first tick box was not pre-ticked and asked users to consent to being contacted by certain sponsors about commercial offers. It was mandatory for this box to be ticked if users wished to participate.

A second pre-ticked box asked users to opt out of cookies by unticking the box. If, however they chose to opt out, they would still be able to participate.

Decision

The consumer protection organisation argued that the way consent to the cookies was being obtained by the lottery organiser was not compliant with EU legislation.

The CJEU noted that a pre-ticked box makes it impossible to say for certain whether a user has given consent and a user may not have read the information accompanying the pre-selected box or they may not have noticed the box at all.

The CJEU concluded that storing cookies requires users active, informed and unambiguous consent regardless of whether the information stored in the cookie contains personal data or not. It would not be sufficient to present users with a pre-ticked box and require them to untick it to opt out.

The CJEU further concluded that users must be informed of how long cookies will be stored and whether third parties will have access to information collected by the cookies.
Conclusion

This decision is not surprising as it echoes comments previously made by regulators that implied consent for cookies is insufficient.

In light of this decision, if you are a website owner, then your website users should now see more information available to them on exactly what they are consenting to when they agree to cookies.

Invicta Law’s Corporate and Commercial team can assist if you are a website owner and are unsure whether your cookies policy meets requirements. We deliver high quality legal advice at competitive rates for clients, while remaining compliant and minimising risk. Contact us on 03000 411993 or email mo.olatuja@invicta.law for more information.

Contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute professional or legal advice. Invicta Law cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

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