German Federal High Court of Justice (Bundesgerichtshof) today released the judgement of the Planet49 case.
The two main learnings from this judgment are
- prechecked checkboxes are not an effective consent by the user.
- prechecked checkboxes are an inadequate discrimination of the user
This judgment does not change the current law in place, namely Telemedia Law (Telemediengesetz, TMG) or GDRP.
Without explicit consent — namely explicitly checking checkboxes — collecting data and subsequently creating user profiles is not allowed. This is independent from the fact, whether the data is related to a person or not.
As a result website operators do have to ask for consent from the users before triggering tracking or dropping cookies, which are not a hard requirement for using the website. Very likely the discussions and cases, which are likely to come up, will deal with the topic whether a special cookie or tracking is hard requirement for operating business. Especially in the adtech space cookies and tracking are the core of the business and therefore a hard requirement to do business.
From a user perspective, it is very likely that consent banner is the first touchpoint when coming to a new website.