1. How Planet49 used cookies?
Planet49 is a German company who organized a promotional lottery on his webpage www.dein-macbook.de. For the visitor to take part in the lottery he had to provide certain personal data such as his name and address.
Below the input fields for the personal data two short explanatory text were placed accompanied by checkboxes. The first text declared that the visitor consents to receive commercial information from the sponsors and cooperation partners of Planet49. The checkbox appeared without a preselected tick.
The second text declared that the visitor consents that Planet49 sets cookies on his device, which enables Planet49 to evaluate the visitor’s surfing and use behaviour on websites. The checkbox next to the text contained a preselected tick.
2. How using cookies came before the CJEU?
The German Federation of Consumer Organisations („Federation”) sued Planet49 as in his opinion the practice of the company more precisely the consents requested by him do not comply with the German consumer protection laws.
The litigation between the Federation and Planet49 came even before the German high court who decided to start a preliminary ruling procedure before the CJEU.
In fact, the German high court was on the opinion that in order to make a decision in the case the it is necessary to interpret together the Directive on privacy and electronic communications and the GDPR (as well as his „predecessor”, the Data Protection Directive).
3. The questions before the CJEU
The CJEU need to answer the below questions:
4. The CJEU’s answers
In order to answer the above questions, the CJEU interpreted together the Directive on privacy and electronic communications and the GDPR (also the Data Protection Directive) and made the following conclusions:
5. Lesson learnt
The most important lesson of the case is that the CJEU confirmed in the context of cookies that the „consent” given by way of a pre-checked checkbox cannot be considered as valid.
Further, it is significant that for the placement of the cookies the consent of the user is not only necessary when the cookie is considered as personal data but also if it is not personal data.
Finally, in case of cookies, the CJEU extended the minimum requirements of the prior notification to the storage period of the cookies and their accessibility by third parties.
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