On May 28, 2020, Germany’s Federal Court of Justice (‘BGH’) announced its decision on the Planet49 case, ruling that the use of pre-ticked checkboxes in Planet49’s online lottery form was unlawful. This conclusion is in line with the Court of Justice of the European Union’s (CJEU) Planet49 decision that the pre-ticked checkboxes were unlawful forms of consent under the ePrivacy Directive (2002/58/EC), the Data Protection Directive, and the General Data Protection Regulation (GDPR). The BGH’s decision will potentially impact direct marketing and the use of Consent Management Tools.
A Question of Informed Consent
In 2013, a German consumer rights group lodged a legal complaint against Planet49 alleging that its lottery website’s pre-ticked checkbox did not constitute valid consent. The form had two checkboxes, the first of which was not pre-configured to give consent, so the user could freely choose to consent to advertise by post, telephone, email, or SMS from Planet49’s partners. However, the second checkbox, which offered the option to consent to cookies, was pre-ticked. To participate in the lottery, at least one of the checkbox fields had to be ticked, so the BGH had to determine whether consent was being given freely and for a limited purpose.
The BGH sought clarity from the CJEU on the interpretation of the ePrivacy Directive and the GDPR. In October 2019, the CJEU concluded thatPlanet49’s use of pre-ticked checkboxes did not fulfill the legal requirements for effective consent.
What was the BGH’s Ruling?
Building on the CJEU’s clarification, the BGH determined that Planet49’s use of pre-ticked checkboxes did not constitute lawful consent. Another aspect of the decision worth noting is BGH’s holding that Section 15(3) of the Telemedia Act (‘TMG’) is to be interpreted in line with the ePrivacy Directive, meaning that user consent is required for cookies that create user profiles for the purposes of advertising or market research. The BGH also highlighted the importance of informed consent—that is, to legitimately give consent the user must have a clear knowledge of the products or third parties the consent covers. In this case, Planet49 did not fulfill the requirement of informed consent because the form’s design encouraged the user to refrain from a particular selection through an elaborate process of selecting partner companies on a list, which consequently leaves the choice of advertising partners to Planet49.
What Impact will the BGH’s Planet49 Ruling Have?
Notably, the BGH followed the CJEU’s stance on the conditions required to obtain valid consent, namely that the use of pre-ticked boxes will not constitute lawful consent. The BGH’s interpretation of the TMG means that companies will now be required to get consent for cookies when used for advertising or market research Moreover, consent to advertising activities by third parties must be informed and specific to be lawful.
The important question now is what the BGH’s rulings mean for consent management. The industry will have to take a close look at whether the rulings mean that Consent Management Tools can only be used lawfully if consent is obtained for each service or tracking provider, as opposed to the frequently seen ‘Accept all’ option.
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