The Federation of German Consumer Organizations had sued a website operator for injunctive relief, among other things. The point of contention was a competition offered on the website. In order to take part in the competition, users had to tick at least one of two checkboxes and thus consent to certain advertising or cookies. A pre-ticked box played a decisive role in this.
The Federal Court of Justice (BGH) had to clarify two questions in this case: One on consent to telephone advertising and the other on consent with regard to cookie storage (judgment of May 28, 2020, ref.: I ZR 7/16 – Cookie Consent II).
Consent to telephone advertising: clarity about advertising companies and products required
The first field was not preselected. Users who ticked this box gave their consent to receive advertising from up to 57 sponsors and cooperation partners, for example by telephone. The BGH criticized the fact that the specific products and advertising companies had to be clearly recognizable when consenting to telephone advertising via general terms and conditions in order to enable an informed decision. However, this clarity was lacking.
No cookie consent possible with preset checkbox
The second field of the competition contained the following text:
“I agree that the Remintrex web analysis service may be used on my computer. As a result, the competition organizer, the [defendant], sets cookies after registration for the competition, which enables [the defendant] to evaluate my surfing and usage behavior on websites of advertising partners and thus interest-based advertising by Remintrex. I can delete the cookies at any time. Read more here.”
The word “here” led to further information about how the cookie works. This field was already ticked and should have been actively deselected by the user. It was not possible to take part in the competition if both boxes were unchecked.
The BGH did not consider this preselected cookie notice to be effective consent. It thus followed the decision of the European Court of Justice (ECJ) of October 1, 2019, case no. C-673/17, which also stated that consent can only be effective if it is actively given by the user. The presence of a pre-ticked checkbox contradicts this requirement.
General Data Protection Regulation (GDPR) and the unchanged legal situation regarding pre-ticked checkboxes
The competition and the subsequent warning took place under the Data Protection Directive, i.e. before the GDPR came into force. Nevertheless, the BGH clarified that the legal situation had not changed as a result. Consent was not valid under either the old directive or the GDPR if the checkbox was preselected, i.e. if it contained a pre-ticked box.
Consumer associations and the warning of data protection violations
It was not decided in this case whether consumer associations can issue warnings for data protection violations and take legal action in civil courts. However, the BGH considered the ticked checkbox to be an inadmissible general terms and conditions for participation in the competition, which influenced the decision.
The question of whether the GDPR conclusively regulates who may prosecute data protection violations arises in many other cases. The BGH therefore referred this question to the ECJ for a ruling on the same day in another case (decision of May 28, 2020, case reference: I ZR 186/17).
Conclusion: Pre-ticked checkboxes as inadmissible consent
This case shows that pre-ticked checkboxes are not permitted when consenting to advertising or cookies. In order to comply with the law, companies must ensure that users give their consent actively and without pre-selected options. The decisions of the BGH and the ECJ make it clear that a pre-ticked box does not fulfill the requirement of active and voluntary consent. Companies should therefore carefully check whether their consent mechanisms comply with the applicable data protection requirements in order to avoid warnings and legal consequences.
The issue of pre-ticked checkboxes goes beyond the legal level and also touches on the question of user transparency and consumer trust. A pre-ticked checkbox often leads to users unconsciously and unintentionally consenting to certain data processing, which can affect trust in online offerings in the long term. For creative companies and entrepreneurs who rely on a transparent and user-friendly design of their websites, the clear distinction between voluntary and automatically pre-set consent is a decisive factor in avoiding legal pitfalls and at the same time protecting their own reputation. Awareness of the need to actively set a checkmark is therefore not only required by data protection authorities, but is also an important aspect of digital customer loyalty and transparency strategy.
