The user does not effectively consent to the storage of cookies if the user of the web page uses a checkbox with a pre-set check mark. Rather, the permission to set cookies requires the active consent of the Internet user, as stated by the Court of Justice of the European Union in a judgment of October 1, 2019 (Case No. C-673/17). If the storage/collection of information from cookies is based on consent, a pre-set checkbox does not constitute effective consent.
The Court of Justice has ruled that the consent required for the storage and retrieval of cookies on the device of a website visitor is not effectively given by a pre-set checkbox that the user must deselect to refuse consent. In this respect, it makes no difference whether the information stored or accessed on the user’s device is personal data or not. Neither an “opt-out” nor a “soft opt-in” (continue surfing) solution constitutes legally effective consent.
Union law was intended to protect users from any intrusion into their privacy, in particular against the risk of “hidden identifiers” or similar instruments entering their device. Therefore, consent must be given for the specific case. Pressing the button to enter the competition does not yet constitute effective consent of the user to the storage of cookies. In this context, the service provider is obligated to provide the user with information regarding the function duration and the access possibility of third parties regarding their cookies. It makes no difference whether the data stored is personal or anonymous.
