Planet 49 as a precedent: BGH ruling on opt-in for cookies

With the introduction of the GDPR in 2019, many regulations on the handling of personal data on the internet were updated and the conditions under which online retailers and website operators are allowed to collect and use personal data were significantly tightened.

Previously, for example, the use of the most popular analytics software, Google Analytics, was relatively unproblematic under certain conditions. However, instead of clarity and legal certainty for store operators and marketers, the GDPR also brought with it a number of ambiguities. These ambiguities should be eliminated with the so-called ePrivacy Regulation. Until this is implemented, website operators should be able to rely on the legitimate interest in Art. 6 para. 1 lit. f GDPR.

The long wait for legal certainty

Nevertheless, many questions remained unanswered. For example, website operators and lawyers were waiting for an answer to the question: How will the courts rule and implement existing law in practice? One particularly important area concerned the rules on setting cookies. Until now, online providers have argued about whether users actively object to the use of their user behavior on the Internet (opt-out procedure) or whether users must actively give their consent to the use of their data (opt-in procedure).

Cookie banners and checkboxes okay?

This question was clarified on 28.05.2020 by the recent ruling of the Federal Court of Justice: users must clearly declare their consent to the use of personal data by cookies, not just object to their use. Platform operators are therefore forced to ask website visitors first and foremost whether cookies may be used. Previously selected checkboxes in the cookie banner are also no longer sufficient.

Planet49 as a precedent for consumer centers

The ruling of the BGH relates specifically to the online offering of Planet49 GmbH from Sulzbach in Hesse and the question of whether genuine consent must be obtained when cookies are set or whether a "You can continue surfing" banner is sufficient. More precisely, the question was whether the checkboxes in the banner should be pre-filled. This is how it was handled on the Planet49 website: some checkboxes were already checked when the cookie banner appeared.

Because of these pre-ticked checkboxes, the consumer associations issued a warning to the provider and took the case to the Federal Court of Justice. The BGH referred the case to the European Court of Justice for a number of specific questions, which ruled in 2019. Now the BGH was again responsible as the final instance.

Both the ECJ and the BGH ruled that website visitors must actively give their consent to the setting of certain cookies. A cookie banner that merely provides for an "OK" is not sufficient, according to the judges. Checkboxes that have already been filled in are also not permitted, as the user must actively give their consent.

Exception to the rule: Necessary cookies

Some cookies are necessary to ensure the technical and functional operation of a website. Unfortunately, this does not make the legal handling of cookies any easier, as the legislator does not provide a list or specification of which cookies are technically necessary and which are not. It is easier with cookies that are set for commercial purposes, visitor tracking or so-called affiliate cookies. These are not absolutely necessary to operate the website. Consent is therefore required for these cookies and the checkboxes for these cookies must not be pre-filled.

What do you have to do as a website operator?

If you do not yet use a current cookie banner on your website with which you explicitly obtain consent from the visitor for each area, you must use one from now on. We have summarized the most important points below:

Is your website also affected? Test now for free and view the results directly!

You can test whether your website is using cookies illegally here with our cookie scanner. If the results list cookies that are not exclusively listed under the category "Technically necessary", you need a cookie banner like CCM19.

How can CCM19 help you with BGH-compliant implementation?

CCM19 is a cookie manager for your website or online store. You can choose between the free version for up to 5,000 page views per month and a version for operation on your own server to keep the data 100% under your own control. Both versions are always kept up to date with automatic updates. An overview of the possible variants and all prices can be found here.