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

With the introduction of the GDPR in 2019, many regulations regarding the handling of personal data on the Internet were renewed and the conditions under which online retailers and website operators may collect and use personal data were significantly tightened

Previously, for example, the use of probably the most common analytics software, Google Analytics, was relatively unproblematic under certain conditions. However, instead of clarity and legal certainty for shop 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 invoke the legitimate interest in Art. 6 (1) lit. f DSGVO.


The great 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 for setting cookies. Up to now, online providers have argued here about whether users actively object to the use of their user behaviour on the Internet (opt-out procedure) or whether users must actively give their consent for their data to be used (opt-in procedure).

Cookie banners and checkboxes okay?

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

Planet49 as a precedent for consumer centres

The ruling of the BGH refers specifically to the online offer of Planet49 GmbH from Sulzbach in Hesse and the question of whether real consent must be obtained when cookies are set, or whether a "You can continue surfing quietly" banner is sufficient. More precisely, the issue was whether the checkboxes in the banner could be pre-filled. This is how it had been handled on the Planet49 website: Some checkboxes were already ticked when the cookie banner appeared.

Because of these pre-crossed checkboxes, the consumer centres had issued a warning to the provider and took the matter to the Federal Supreme Court. The BGH referred the case because of some specific questions to the European Court of Justice, which ruled in 2019. Now the BGH was again responsible as the final instance.

Both ECJ and BGH ruled that the website visitor must actively give consent to the setting of certain cookies. A cookie banner that merely provides for an "OK" is not sufficient, the judges said. Even checkboxes that have already been filled in are not permissible, because the user should actively give his consent.

Exception to the rule: Necessary cookies

Some cookies are necessary to ensure the technical and functional operation of a website. Unfortunately, this circumstance does not make the legal handling of cookies any easier, because 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 economic purposes, the tracking of visitors or so-called affiliate cookies. These are not absolutely necessary to operate the website. Therefore, consent is absolutely required for these cookies and the checkboxes for these cookies must not be pre-filled.

What is in store for you as a website operator?

If you don't already use a current cookie banner on your site that explicitly collects consent from the visitor for each area, you will need to use one from now on. Below we have summarized the most important points:

  1. You absolutely need real consent from your site users for setting cookies - especially tracking cookies like those from Google Analytics, Facebook, and various other tools and extensions
  2. A cookie banner with the checkbox already pre-ticked is no longer enough. The age-old practice of a notice such as "By continuing to browse, you accept..." has long since ceased to constitute sufficient consent
  3. The cookie banner must reliably block cookies until the user has consented. Only then may the cookies be set - or not
  4. You need an overview of which scripts set which cookies on your site to be able to decide how to deal with the scripts and cookies

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

You can test whether your website uses 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 shop. You have the choice between the free variant for up to 5,000 page views per month and a variant for operation on your own server, to keep the data 100% under your own control. Both variants are always kept up-to-date by automatic updates. An overview of the possible variants and all prices can be found here.


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