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Cookies, and cookie banners in particular, have been a thorn in the side of consumers and privacy activists for years. A new ruling has been issued against controversial data collection on the Internet. In this, the famous Burda publishing house lost to the consumer organization.
A long way to ban cookies
The Federation of German Consumer Organizations (VZBV) must be popping champagne corks these days. Less than a month ago, the Munich Regional Court I found that BurdaForward was right to be accused of violating the Telecommunications Telemedia Data Protection Act (TTDSG). Focus Online has focused on cookie banners on the website. The accusations that have now been dealt with by the regional court are not really new.
However, this procedure is a novelty in the field of application centers. In fact, it is common practice for individual national consumer centers to handle consumer protection issues. This also includes data processing by German companies. However, this never came to fruition and the union ended up in court. And it seems to have been very successful.
The Munich Regional Court hastened
The Munich Regional Court I also plays a decisive role in the decision. So the question of whether the German Consumer Organizations Association has the right to sue for a breach of the General Data Protection Regulation (GDPR) was pending. The European Court of Justice (ECJ) has not yet issued a decision on this matter. However, the second attempt is likely to be positive, as the Federal Court of Justice (BGH) based in Karlsruhe last spring confirmed that it is possible to file a lawsuit. The regional court in the Bavarian capital is obviously taking too long. After all, the ECJ ruled before it was clear whether it would recognize the right to sue on its own.
The decision of the Munich court now speaks in plain language in any case. 33 In the decision, file number O14776/19, Burda Verlag is no longer allowed to make “cross-domain recordings of user behavior for analysis and marketing purposes”. If Burda makes changes to its cookie collection, this ban will be lifted again. Specifically, the consent method is inconsistent with current legislation. However, since the decision has not yet become legally binding, we can assume that Burda-Verlag will exhaust its legal remedies until a final decision is made on the matter.
Burda encourages user learning on cookies
It’s almost clever how the cookie collection works on Focus Online. For example, website visitors must endure a total of 141 cookie banners. According to the court, this interferes with “informed and voluntary consent.” Burda claims that it has a “legitimate interest” in the processing of user data. The publisher cannot understand the criticism of the Focus Online website, because this procedure is considered normal in the market. In his opinion, it should be recognized that users still understand the principle of cookie banners. He refers to the “two-step nature” of the cookie query. Therefore, in the first pop-up window, a window will open where you can allow the collection of cookies or make detailed settings.
Just by clicking on “Settings” you will have the option to allow the collection of so-called second-level cookies. It is not possible to opt out of other cookies in the first stage because the law simply does not provide for it. Very well known so far. However, it is problematic that by clicking on consent, your data will not be constantly transmitted to more than a hundred “data collectors”. Burda uses IAB Europe technology for its banners. It was only sanctioned by the data protection authority in Belgium earlier in the year. However, there is no court decision in this case either.
Discovery for data protectionists
The Munich Regional Court seems to have been quicker now and expressed its opinion on the matter. Therefore, according to the judges, this is very sensitive information that goes through the usual TC string for IAB Europe. It even allows users to be identified by third parties who process files. Finally, the IP address is also transmitted. Furthermore, the court doubts that users have voluntarily consented to data processing and collection. It was just a lack of willpower because it took too long to resist the crackers. Here, too many users choose the path of least resistance and ignore the protection of their personal data in favor of faster Internet access.
Rosemary Rodden, advisor to the German Consumer Organizations Association, was more than happy to ask her colleagues at heise online. In particular, it is considered that the lack of voluntary consumerism is confirmed by a court decision. But according to Rodden, the judges in Munich took another important step. In particular, the conclusion that a collection of cookies the size of Focus Online is not technically necessary for a news site is an important decision. Now, consumer advocates are looking favorably on the next lawsuit against Burda Verlag.
Burda announces legal action
Of course, Burda has a different opinion. Publishers consider cookie management to be absolute custom in the marketplace. The operator of Focus Online and many other sites explained it online. In doing so, he also mentioned the scope of the resolution. According to Burda, the Munich Regional Court I ruled on a point of law that had not even been decided by the Supreme Court. So it’s not surprising that the publisher has filed an appeal. So how the controversial cookie banners will be handled in the future remains exciting.
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