The court decided that the use of pre-ticked boxes was not a valid form of obtaining consent for cookies before May 24, 2018 and remains an invalid way of obtaining consent under the GDPR. The court’s decision applies the German provisions on cookies in the German Telemedia Act which it interprets in light of the EU Directive on Privacy and Electronic Communications (“ePrivacy Directive”).
The court’s decision addresses a much-debated topic in Germany, namely whether the provisions on cookies of the Telemedia Act continue to apply after the entry into application of the GDPR. The German Supervisory Authorities are of the opinion that the provisions of the Telemedia Act do not implement the ePrivacy Directive and are, therefore, no longer enforceable because they conflict with the GDPR. According to the court, the fact that the Government has not amended abovementioned Section 15(3) of the Telemedia Act means that it is of the opinion that it transposes appropriately the ePrivacy Directive. According to the court, it is possible to interpret Section 15(3) of the Telemedia Act in a way that is in line with the ePrivacy Directive.