Judgment of the ECJ on (tracking) cookies

At the beginning of October, the European Court of Justice (ECJ) passed a significant judgment on cookie information obligations of website operators, which we would like to inform you about in this news.

Cookies and similar tracking methods may no longer be used unless customers have previously given their consent. The only exception is the operation of technically necessary cookies such as cookies for the login or the shopping cart. According to the court, website owners must now provide detailed information on the collection of cookies on their pages. The usual cookie notes (cookie banners) do not fulfill the requirements of the ECJ for three reasons:

• Users cannot really agree.
• These notes do not clarify anything about the data transfer and data usage in detail.
• Bare information banners don’t interrupt the automatic data transmission until the consent of the users. But that’s necessary to implement the privacy policy.

The judgment is important for everyone who is using cookies in the area of tracking or marketing on their website. It is also important for everyone who has included a Facebook like button or any similar button of social networks (Twitter, Instagram, LinkedIn etc.) on their pages.
The ECJ has also commented on four important issues:

• Website owners are always responsible for privacy violations, along with Facebook and other social networks.
• The unsolicited transmission of user data through the buttons of social networks on websites violates the data protection law.
• Competition associations may charge a fee for websites which have implemented the Facebook like button without consent.
• Cookies which are set up for tracking or advertising purposes must have a real consent of the website visitors. A cookie hint banner is not suitable for this purpose.

The ruling now can also be interpreted as an announcement to the German legislator to readjust German law to the EU rules. It is very likely that this will be closely aligned with the legal requirements of the ECJ.

We would like to point out to you that we are not allowed to offer legal advice. For further information we recommend the following page of the European Commission: https://wikis.ec.europa.eu/display/WEBGUIDE/04.+Cookies

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