The European Court of Justice: no cookie storage without active consent of the internet user

Cookies - einwilligen oder nicht?

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. The permission to set cookies rather requires the active consent of the Internet user, the Court of Justice of the European Union stated 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.

Acceptance of cookies must not be preset

The Court of Justice has ruled that the consent required for the storage and retrieval of cookies on the device of the visitor to a website is not effectively given by a pre-set checkbox which the user must deselect in order to refuse his 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.

People must give their consent for any kind of data transfer, tracking ….

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. The consent must therefore 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 the user to provide information regarding the function duration and the access possibility of third parties about his cookies. It makes no difference whether it is personal or anonymous data that is stored.