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European Court of Justice decision dated October 1, 2019: Opt-in required for the use of cookies

On 1 October 2019, the ECJ ruled that visitors to websites must actively consent to the use of cookies (cookie opt-in).

This principle, anchored in the Cookie Directive, has not yet been implemented by the German legislator. This has led to legal uncertainty in the past. In practice, therefore, hardly anyone has a legally compliant cookie banner; most only use an info banner. In the implementation of the ECJ decision, however, it is now necessary that visitors to a website are informed which cookies are to be found and that this use must be actively approved by ticking a control box.

It is important that the use of a website may not be made dependent on the consent to the use of cookies, i.e. that a website must be visitable and usable even if the visitor decides not to use cookies. This requires that the content of the website must be variable. A prominent example is the integration of Google services, such as Google Maps. If a website visitor does not agree to the use of cookies, functions such as the route to the site via Google Maps may not be displayed or used.

Since the technical implementation of these specifications represents a challenge for many website operators, we can only recommend as an immediate measure to refrain from using such cookies until the final implementation of the corresponding specifications. We assume that the decision of the European Court of Justice will be disseminated in the media and will receive a lot of attention.

There is therefore a threat of costly warnings and fines from the data protection supervisory authorities. Now that the legal uncertainty has been removed by the decision of the European Court of Justice regarding the use of cookies, they have a good chance of getting through with their warnings / fines.

Please contact Dennis Marl at

d.marl@egsz.de

for any additional questions.

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