Germany Update: Cookie banners: Supervisory authorities take action

Cookies are set on many websites. Their use usually requires obtaining consent. In practice, cookie banners have meanwhile prevailed almost without exception. Depending on the design of the cookie banner, it is more or less easy for the visitor to refuse or accept individual or all cookies. Many users want to get to the actual website as quickly as possible and therefore choose the path of least resistance, i.e. they accept all cookies when this is done the fastest. However, this does not necessarily correspond to their actual will. The question therefore arises as to whether effective consent to the use of cookies has been given in this case.

Clear opinion of the supervisory authorities

The German supervisory authorities have a clear opinion on this: According to this, effective consent is only available if it is just as quickly and easily possible to agree to the use of cookies as to (completely) reject them. Both alternative courses of action must therefore be listed on an equal footing in a cookie banner next to each other. The possibility of being able to refuse processing only through further actions, such as .B clicking on a button with the inscription “Settings”, is not sufficient for effective consent.

Supervisory authorities take action

Due to numerous user complaints, the European supervisory authorities are now becoming increasingly active. According to the French supervisory authority CNIL, the Hamburg Commissioner for Data Protection and Freedom of Information (HmbBfDI) is currently taking action against Google and other media companies. At the beginning of April, he informed Google that the consent banners on the pages of the Google search engine and on YouTube currently do not comply with the data protection requirements. He explains: “The consent must correspond to the actual will of the users. You must be able to exercise this without manipulation or influence. This is only the case if approval and rejection are equally possible. Google does not currently fulfill this, but has expressed in an initial reaction the willingness to provide an equivalent rejection alternative in a timely manner. Overall, a ‘reject all’ button must now become the standard for cookie banners. In connection with ongoing complaint proceedings, this request was therefore also sent to other media houses.”

Check your cookie banner!

All cookie banners on German websites should be checked promptly for compliance with the requirements of the supervisory authorities. The effort required for this is low, but the effect is great. It is quite likely that at least the German supervisory authorities will no longer only check “prominent” websites, but will also carry out a broader campaign against insufficient cookie banners on websites of German operators – possibly even automated, as in other cases.

By Steffen Ruh, MELCHERS, Germany, a Transatlantic Law International Affiliated Firm.  

For further information or for any assistance please contact germany@transatlanticlaw.com

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