Storing Cookies Requires Internet Users’ Active Consent Says Court of Justice of the European Union

The Court of Justice of the European Union 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 prechecked checkbox which that user must deselect to refuse his or her consent.

en flag
nl flag
fr flag
de flag
pt flag
es flag

Press Announcement from the Court of Justice of the European Union

Judgment in Case C-673/17, Bundesverband der Verbraucherzentralen und Verbraucherverbände ̶ Verbraucherzentrale Bundesverband eV v Planet49 GmbH

Storing cookies requires internet users’ active consent, a pre-ticked checkbox is therefore insufficient.

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. (1) 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. (2)

In today’s judgment, 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 prechecked 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.

NOTE: A reference for a preliminary ruling allows the courts and tribunals of the Member States, in disputes which have been brought before them, to refer questions to the Court of Justice about the interpretation of European Union law or the validity of a European Union act. The Court of Justice does not decide the dispute itself. It is for the national court or tribunal to dispose of the case in accordance with the Court’s decision, which is similarly binding on other national courts or tribunals before which a similar issue is raised.


(1) Cookies are files which the provider of a website stores on the website user’s computer which that website provider can access again when the user visits the website on a further occasion, in order to facilitate navigation on the internet or transactions, or to access information about user behaviour.

(2) Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ 2002 L 201, p. 37), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009 L 337, p. 11), read in conjunction with Article 2(h) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31), and of Article 6(1)(a) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46 (General Data Protection Regulation) (OJ 2016 L 119, p. 1).


Full PDF Copy of the Court of Justice of the European Press Release No. 125/19, 1 October 2019

Court of Justice of the European Union No 125:19 – 100119

 

Additional Reading

Source: ComplexDiscovery

Have a Request?

If you have information or offering requests that you would like to ask us about, please let us know and we will make our response to you a priority.

ComplexDiscovery is an online publication that highlights data and legal discovery insight and intelligence ranging from original research to aggregated news for use by business, information technology, and legal professionals. The highly targeted publication seeks to increase the collective understanding of readers regarding data and legal discovery information and issues and to provide an objective resource for considering trends, technologies, and services related to electronically stored information.

ComplexDiscovery OÜ is a technology marketing firm providing strategic planning and tactical execution expertise in support of data and legal discovery organizations. Registered as a private limited company in the European Union country of Estonia, one of the most digitally advanced countries in the world, ComplexDiscovery OÜ operates virtually worldwide to deliver marketing consulting and services.

CloudNine Secures Growth Equity Investment

According to Steve Johnson, co-founder and Partner at Crest Rock, “CloudNine...

Relativity Acquires Text IQ

"We're merely scratching the surface of what the application of AI...

Sandline Discovery Acquires Frankfurt Germany-based 24legal

According to Dominic Piernot, co-founder of 24legal, “We are super excited...

Consilio and Xact Data Discovery Merger Closes

“We are very pleased to close the merger with Xact Data...

A New Era in eDiscovery? Framing Market Growth Through the Lens of Six Eras

There are many excellent resources for considering chronological and historiographical approaches...

An eDiscovery Market Size Mashup: 2020-2025 Worldwide Software and Services Overview

While the Compound Annual Growth Rate (CAGR) for worldwide eDiscovery software...

Resetting the Baseline? eDiscovery Market Size Adjustments for 2020

An unanticipated pandemeconomic-driven retraction in eDiscovery spending during 2020 has resulted...

Home or Away? New eDiscovery Collection Market Sizing and Pricing Considerations

One of the key home (onsite) or away (remote) decisions that...

Five Great Reads on eDiscovery for May 2021

From cyber discovery and data breaches to business of law and...

Five Great Reads on eDiscovery for April 2021

From X-Road® and risk management to business confidence and cybersecurity, the...

Five Great Reads on eDiscovery for March 2021

From data breach economics and vulnerabilities to private-equity investments and vendor...

Five Great Reads on eDiscovery for February 2021

From litigation trends and legal tech investing to facial recognition and...

CloudNine Secures Growth Equity Investment

According to Steve Johnson, co-founder and Partner at Crest Rock, “CloudNine...

A Mushrooming Opportunity? Canopy Secures AI-Powered Data Breach Response Patent

According to Ralph Nickl, CEO and co-founder of Canopy, “Until recently,...

Exterro Launches FTK Central

According to Exterro Founder and CEO Bobby Balachandran, “FTK Central’s new processing...

The eDisclosure Systems Buyers Guide – 2021 Edition (Andrew Haslam)

Authored by industry expert Andrew Haslam, the eDisclosure Buyers Guide continues...

Checking Your Six? An Aggregate Overview of Six Semi-Annual eDiscovery Pricing Surveys

The anonymized aggregate results from six semi-annual surveys highlight eDiscovery pricing...

Alternative Price Styles? Summer 2021 eDiscovery Pricing Survey Results

Based on the complexity of data and legal discovery, it is...

Ready for Takeoff? Eighteen Observations on eDiscovery Business Confidence in the Spring of 2021

In the spring of 2021, 60.0% of eDiscovery Business Confidence Survey...

Issues Impacting eDiscovery Business Performance: A Spring 2021 Overview

In the spring of 2021, 25.0% of respondents viewed budgetary constraints...