In the first of a series of proceedings by the Federal Association of Consumer Organizations (VZBV) against the cookie banners that are common today, BurdaForward, a subsidiary of Hubert Burda Media, suffered a defeat: The Munich I Regional Court decided at the end of November that the cookie banner was on Focus Online violates the Telecommunications Telemedia Data Protection Act (TTDSG). However, the judges did not agree with the consumer advocates on all points.

With the procedure itself, the umbrella organization of consumer advice centers has broken new legal ground. The data protection officers of the federal states are actually responsible for monitoring the legality of data processing by German companies. Several of the authorities had already initiated an audit of publishing websites . However, this did not result in any publicly known sanctions or other noticeable effects.

The consumer advocates want to take a tougher approach: They have therefore filed a lawsuit against a total of five large German publishers. Whether the VZBV has the right to sue in the event of violations of the General Data Protection Regulation (GDPR) was already controversial: courts referred the question to the Federal Court of Justice (BGH), which in turn reassured itself to the European Court of Justice. When the latter gave the green light for lawsuits in April, the question seemed to have been clarified, but in November the BGH surprisingly made a second request to the Luxembourg court to define the exact conditions of such proceedings.

But the Munich Regional Court didn't want to wait any longer for clarification and made a decision at the end of November (file number 33 O14776/19): According to this, the publisher is not allowed to record user behavior across domains for analysis and marketing purposes without consent be designed significantly differently. However, the decision is not yet legally binding.

The court does not see the current practice on Focus Online as suitable for obtaining “informed and voluntary consent” from users. The screenshots of the cookie banners used on Focus Online at the time of the lawsuit in 2019 alone comprise 141 pages in the decision available at heise online - far too much information to be sufficiently appreciated by the average consumer.

According to the lawsuit, even those who seemingly refused consent at the first level still allowed many cookies for which BurdaForward relied on the “legitimate interest” of processing and sharing user data. In addition to the use of cookies, consumer advocates also criticized other forms of tracking: such as browser fingerprinting, the integration of scripts, iframes and the recording of IP addresses.

The defendant publisher, however, pointed out that the design of the cookie banner on Focus Online was standard practice and that readers did not have to take note of all the pages of the cookie banner. The users have now learned the “two-stage nature” of such dialogues. The law also does not provide that users should be able to reject all data processing with one click on the first level of a cookie banner.

For its cookie banner, the publisher relies heavily on the Transparency and Consent Framework TCF from the advertising organization IAB Europe, with the help of which users' consent can be passed on to over a hundred third parties with a single click. The responsible Belgian data protection authority had already declared the procedure inadmissible . However, IAB Europe is currently fighting the supervisory decision in court.

The Burda publishing house took the position that the TCF and the transmitted “consent string” met the legal requirements and did not contain any information about which apps or websites a user had visited. All in all, the transmission of consent alone “does not offer very intimate insights”.

The regional court did not want to follow this argument. For the judges, the TC string is clearly personal information, as it is precisely the individual consent that is intended to be transmitted. Since an IP address is necessarily transmitted with the TC string, a comparison with other data and thus identification is possible. The court also rejected the argument that third parties store cookies for which the website operator itself is not responsible. Whether the publisher uses cookie banners based on the TCF is its own decision.

The court does not believe that the users gave valid consent for the processing. “Consent can only be considered voluntary if the person concerned actually has a choice, i.e. can forego giving consent without disadvantages.” The effort involved in refusing consent is increased given the speed that is usual on the Internet high.

The legitimate interest cannot be used as a justification for data processing either. Publishers complain that without such data processing it is hardly possible to refinance journalistic content. “This is simply a matter of the defendant’s subjective interests,” explained the judges. However, they rejected further requests from consumer advocates because the lawsuit only related to the German TTDSG and not to the GDPR directly.

Rosemarie Rodden, a speaker at VZBV, told heise online that she was satisfied with the verdict. “It is very pleasing that the court agreed with our view and found that the consent obtained with the cookie banner was not based on a voluntary decision by the users.” The court also acknowledged important details: “The court confirmed that “Cookies that are used for cross-domain tracking for analysis and marketing purposes are not technically absolutely necessary for the operation of a news portal,” explained Rodden. The association now wants to examine to what extent the lawsuits can be further adjusted in the parallel proceedings.

Naturally, the publisher sees this differently. Burda explains to heise online in a statement that the consent management at Focus Online “complies with both the applicable laws and current market standards at all times”. With the judgment, the regional court took a position on some “legal questions that have not been clarified and controversially discussed by the highest court”. The publisher therefore decided to appeal the verdict.

Source:

Heise Online

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