International Commercial Law Blog

Storing cookies requires internet users’ active consent

The German Federation of Consumer Organisations has challenged before the German courts the use by the German company, Planet49, of a pre-ticked checkbox in connection with online promotional games, by which internet users wishing to participate consent to the storage of cookies. The cookies in question aim to collect information for the purposes of advertising Planet49’s partners’ products.

The Bundesgerichtshof (Federal Court of Justice, Germany) asked the Court of Justice to interpret the EU law on the protection of electronic communications privacy.

In today’s judgment in Case C-673/17, the Court decides that the consent which a website user must give to the storage of and access to cookies on his or her equipment is not validly constituted by way of a pre- checked checkbox which that user must deselect to refuse his or her consent.

That decision is unaffected by whether or not the information stored or accessed on the user’s equipment is personal data. EU law aims to protect the user from any interference with his or her private life, in particular, from the risk that hidden identifiers and other similar devices enter those users’ terminal equipment without their knowledge.

The Court notes that consent must be specific so that the fact that a user selects the button to participate in a promotional lottery is not sufficient for it to be concluded that the user validly gave his or her consent to the storage of cookies.

Furthermore, according to the Court, the information that the service provider must give to a user includes the duration of the operation of cookies and whether or not third parties may have access to those cookies.

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