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.

Business as Unusual? Eighteen Observations on eDiscovery Business Confidence in the Summer of 2020

The results of the recent Summer 2020 eDiscovery Business Confidence Survey present the unfortunate and continuing impact of COVID-19 on the business of eDiscovery. However, for these pandemic-driven results to be fully understood, they should be viewed through the contextual lens of the results of all nineteen surveys that have been administered to eDiscovery professionals since the inception of the eDiscovery Business Confidence Survey in early 2016.



Check Out the Observations Now!

Interested in Contributing?

ComplexDiscovery combines original industry research with curated expert articles to create an informational resource that helps legal, business, and information technology professionals better understand the business and practice of data discovery and legal discovery.

All contributions are invested to support the development and distribution of ComplexDiscovery content. Contributors can make as many article contributions as they like, but will not be asked to register and pay until their contribution reaches $5.

Five Great Reads on eDiscovery for September 2020

From cloud forensics and cyber defense to social media and surveys,...

Time for a Change? FTC Proposes Changes to HSR Act Premerger Notification Rules

The Federal Trade Commission, with the support of the Department of...

An eDiscovery Holiday Season Down Under? Macquarie Prepares Nuix for IPO

According to John Beveridge, writing for Small Caps, Macquarie holds a...

Collaborative Cyber Defense: The U.S. Army and Estonia Sign Historic Agreement

“Estonia is a cyber country of excellence with a robust cyber...

A Running List: Top 100+ eDiscovery Providers

Based on a compilation of research from analyst firms and industry...

The eDisclosure Systems Buyers Guide – 2020 Edition (Andrew Haslam)

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

The Race to the Starting Line? Recent Secure Remote Review Announcements

Not all secure remote review offerings are equal as the apparent...

Enabling Remote eDiscovery? A Snapshot of DaaS

Desktop as a Service (DaaS) providers are becoming important contributors to...

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

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

Revisions and Decisions? New Considerations for eDiscovery Secure Remote Reviews

One of the key revision and decision areas that business, legal,...

A Macro Look at Past and Projected eDiscovery Market Size from 2012 to 2024

From a macro look at past estimations of eDiscovery market size...

An eDiscovery Market Size Mashup: 2019-2024 Worldwide Software and Services Overview

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

Festive or Restive? The Fall 2020 eDiscovery Business Confidence Survey

Since January 2016, 2,189 individual responses to nineteen quarterly eDiscovery Business...

Casting a Wider Net? Predictive Coding Technologies and Protocols Survey – Fall 2020 Results

The Predictive Coding Technologies and Protocols Survey is a non-scientific semi-annual...

Business as Unusual? Eighteen Observations on eDiscovery Business Confidence in the Summer of 2020

Based on the aggregate results of nineteen past eDiscovery Business Confidence...

A Growing Concern? Budgetary Constraints and the Business of eDiscovery

In the summer of 2020, 56% of respondents viewed budgetary constraints...

An eDiscovery Holiday Season Down Under? Macquarie Prepares Nuix for IPO

According to John Beveridge, writing for Small Caps, Macquarie holds a...

ayfie to Acquire Haive

According to Johannes Stiehler, CEO of ayfie Group AS, “This acquisition...

Innovative Discovery and Integro Merge

“Integro and Innovative Discovery’s services and solutions are highly complementary. Our...

Software Growth Partners Makes Majority Investment in Venio Systems

According to the press announcement, industry analysts have enthusiastically supported this...

Five Great Reads on eDiscovery for September 2020

From cloud forensics and cyber defense to social media and surveys,...

Five Great Reads on eDiscovery for August 2020

From predictive coding and artificial intelligence to antitrust investigations and malware,...

Five Great Reads on eDiscovery for July 2020

From business confidence and operational metrics to data protection and privacy...

Five Great Reads on eDiscovery for June 2020

From collection market size updates to cloud outsourcing guidelines, the June...