In the opinion of the German Federal Court of Justice (BGH), pre-crossed buttons on websites are not sufficient. Consent would be invalid in this case. Instead, the check must be actively set.
What are cookies?
Agreement must be active
According to the BGH, consent is only effective if it has been actively given by the user (so-called opt-in).
ECJ interprets consent in a user-friendly way
After initial uncertainties as to how the term consent is to be interpreted, the Federal Court of Justice (BGH) asked the European Court of Justice (ECJ) for clarification. The ECJ decided that active consent does not apply to a pre-filled checkbox, which the user must uncheck to refuse consent.
Extensive protection of privacy
The BGH also made it clear in its ruling that consent does not depend on whether the information stored and retrieved is personal data. This is because European laws protect not only personal data, but the privacy of internet users as a whole.
Threat of ineffective consent and unnecessary expenses
As a result, the gambling provider was not only ordered to refrain from this consent practice, but also had to pay the plaintiff’s dunning expenses.
This shows that a lawful implementation of cookie consent not only provides protection against subsequent adjustments and invalid consent, but also saves additional costs. Moreover, it is to be expected that supervisory authorities will take action and sanction the previous practice where consent was given by clicking “Ok” or by using pre-filled cookie banners.