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 relation with online lottery games, by which website users willing 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 German Federal Court of Justice asked the Court of Justice to interpret the EU law on the protection of electronic communications privacy.

In its judgment of 1st October 2019 , the Court found that the consent which a website user must give to the storage of and access to cookies on his or her equipment is not valid if the storage of information or access to information already stored in a website user’s terminal equipment is permitted by way of a pre-checked checkbox which the user must deselect to refuse the consent.

That decision is unaffected by whether or not the information stored or accessed on the user’s equipment is personal data. The Court further noted 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.

Our tips:
Although the CJEU’s conclusions are unsurprising, the case is a reminder that implicit consent, even for non-essential cookies, is not allowed.
Website operators should revisit their cookies’ notice to ensure that the latter is compliant with the applicable rules and settled case-law.