ECJ decides on cookie practice on the Internet – the key points


Dusseldorf With cookies, companies store data that includes information about end devices and the media usage behavior of Internet users. Such textual information requires the consent of users – but this is handled differently in practice.

The European General Data Protection Regulation (DSGVO), which has been in force since May 2018, has also brought no clarity. The European Court of Justice (ECJ) will decide on the legality of the cookie practice on this Tuesday. The ruling could have a significant impact on the advertising industry. The most important questions and answers.

The subject of the decision is the question of whether consent for the setting of cookies is necessary and, if so, what that consent should be. Among other things, this depends on the question of whether the setting of cookies is regulated by the GDPR or the E-Privacy Directive. According to the E-Privacy Directive, consent for unnecessary (marketing) cookies would be necessary; according to the GDPR, the use of such cookies can be based on both consent and legitimate interest.

Why is the judgment relevant?

So far, there is no court decision on the legal basis of the use of cookies. “The verdict has therefore a very great relevance,” says Fabian Seip, lawyer with a focus on IT and telecommunications in the Berlin office of the law firm Hengeler Mueller. Currently, there is an unclear legal situation under which circumstances cookies may be set. The reform of the European e-privacy directive should actually regulate the setting of cookies uniformly. “But the new regulation is still far from complete,” says Seip. The judgment of the ECJ should now bring a piece of clarity.

What is the history of the dispute?

2013 organized the German Planet49 GmbH under the Internet address a competition for advertising purposes. Among other things, the login page contained a box that already had a check mark, which allowed the user to accept cookies on his computer. However, the check mark could also be removed (opt-out procedure). The German Association of Consumer Organizations (VZBV) considers this procedure to be inadmissible and has sued Planet49 for omission. Actually, the corresponding boxes should be empty and only be ticked by the user (opt-in procedure). The Federal Court of Justice, which has heard of the legal dispute, has asked the ECJ to interpret the EU data protection rules in this context.

Are all cookies the same?

There are basically two types of cookies. On the one hand, functional cookies, which are mostly desired by the users, for example because they store information about a customized website. This includes shopping carts on e-commerce platforms. However, the decision of the European Court of Justice does not concern these functional cookies, but rather cookies which are placed on the computers for advertising purposes only. Such programs track the usage behavior of people and evaluate this for targeted advertising.

What is the tendency in the decision?

Advocate General Maciej Szpunar has stated in his Opinion of March 2019 that in a case such as this one there is no effective consent in the sense of the Data Protection Directive for Electronic Communications (also known as the E-Privacy Directive) of 2002 in connection with the GDPR. Among the clear and comprehensive information a user needs to receive from a service provider is how long the cookies work and whether or not third parties have access to the cookies. “Cookie banners on websites often do not provide consumers with meaningful information and legal options. Consumers are thus tracked online, without being able to understand the background and without having given a valid consent, “commented VZBV board member Klaus Müller the opinion of the Advocate General.This approach of the website operator was” unacceptable “.

What are the possible consequences?

If the court follows the Advocate General's assessment, it would have a big impact on the economy. “Businesses will find it harder to get users' consent to cookies. This will particularly affect the digital advertising industry, which uses cookies to track user behavior and thus play more targeted advertising, “says lawyer Seip. Users would either run more frequently in front of so-called “cookie walls” – or they would get displayed more advertising, the content of which is not relevant to them.

Platforms like FacebookUsers who need to log in, however, would feel less of a tightening of cookie consent requirements, Seip says. Their users could already give a far-reaching consent with their registration. Furthermore, tightening cookie rules could also mean rethinking publishers. “If many readers shy away from getting targeted advertising, digital journalism publishers need to move to subscription models even faster.”

What role do cookies play in the Internet industry?

The digital advertising industry depends heavily on the placement of cookies, because these small computer programs allow the delivery of targeted advertising. But the headwind is strong. This not only includes stricter data protection at European level, but also changes in Internet browser settings. For example, Mozilla recently announced that in the latest version of its browser, Firefox will block tracking cookies used for marketing purposes. Audience-driven advertising to Firefox users has become almost impossible.

More: A competitor throws Google to spy on the surfing behavior of Chrome users and provide advertisers with personal user information through hidden websites.

Surfing (t) Cookies (t) Advertising (t) Personalized Advertising (t) ECJ (t) European Court of Justice (t) Privacy (t) Internet (t) Marketing (t) Legal Area-Internet (t) Online Marketing (t) Federation of Consumer Centers (t) Mozilla Foundation (t) Hengeler Mueller (t) Facebook (t) Google (t) Internet advertising


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