Germany: BGH issues decision on cookie consent based on CJEU Planet49 case

Dr. Carlo Piltz

"Dr. Carlo Piltz, further highlighted to OneTrust DataGuidance, 'The BGH follows the judgment of the CJEU, in particular on the question of what conditions must be met for effective consent. The decision will certainly have an impact [on direct marketing as] it is now clear that the provision of Section 15 (3) of the TMG is to be understoof as requiring consent. This has not been the case so far. This means that companies are now required to get consent when using cookies for the purposes specified in Section 15(3) of the TMG and in particular for advertising. The BGH expressly states that Section 15(3) of the TMG implements the ePrivacy Directive. Therefore, even if the GDPR is applicable, the provision of Section 15(3) of the TMG continues to be applicable, since it represents an implementation of the ePrivacy Directive as lex specialis and thus takes precedence over the GDPR in accordance with Article 95 GDPR.'"

The full article can be read here.