Cookie banner “On continued use….” illegal

Many consumers might be annoyed by the cookie banners on any websites. As a consumer, I can well understand this and, even as a data protection lawyer, I consider the banners to be superfluous and, in case of doubt, counterproductive with regard to the acceptance of data protection issues.

However, the legal situation is different and also courts tightened the situation. The Regional Court of Cologne has just ruled that a cookie banner with the wording “By continuing to use the website, you agree… to” is unlawful.

The wording and design would not be consistent with § 15 para.3 TMG, as the necessary consent of the website visitor concerned would be lacking. According to the case law of the Federal Court of Justice (BGH), the statutory provision is to be interpreted as requiring express consent for the creation of user profiles for advertising purposes.

This was not the case in the present case, because the mere continued use of the website could not be seen as implied consent.

The problem of corresponding warnings has decreased since December 2020 (see this contribution). However, this only concerns the financial aspects, not the legal issue as such.