Inves­ti­ga­ti­on fin­dings published: coo­kies remain a focus for the data pro­tec­tion authorities!

The data pro­tec­tion aut­ho­ri­ties in mul­ti­ple Ger­man Sta­tes laun­ched a coör­di­na­ted inves­ti­ga­ti­on in sum­mer of last year into the web­sites of some lar­ge media com­pa­nies, focu­sing on the use of coo­kies and the inte­gra­ti­on of third-party ser­vices. Seve­ral of the aut­ho­ri­ties, inclu­ding the Data Pro­tec­tion Com­mis­sio­ner for Sax­o­ny, have issued press releases announ­cing the results of this inves­ti­ga­ti­on (PDF only in German).

What have the data pro­tec­tion aut­ho­ri­ties done?

Start­ing in mid-August 2020, the aut­ho­ri­ties in the Sta­tes of Baden-Württemberg, Bran­den­burg, Bre­men, Ham­burg, Hes­sen, Lower Sax­o­ny, North Rhine-Westphalia, Rhineland-Palatinate, Saar­land, Sax­o­ny and Schleswig-Holstein sent out ques­ti­on­n­aires (only in Ger­man) see­king to coll­ect a very exten­si­ve quan­ti­ty of infor­ma­ti­on about data flows to media web­sites, natu­ral­ly accom­pa­nied by a “spe­cial note” poin­ting out the pos­si­bi­li­ty of an on-site inspec­tion fol­lo­wing the writ­ten pro­ce­du­re, in the event that the aut­ho­ri­ties find that “ambi­gui­ties” still exist. Spe­ci­fi­cal­ly, the aut­ho­ri­ties reques­ted many details about coo­kie set­tings and third-party ser­vices in their ques­ti­on­n­aire : ques­ti­ons about the lawful­ness of data pro­ces­sing, the data pro­tec­tion impact assess­ment, the imple­men­ta­ti­on of privacy-friendly default set­tings pur­su­ant to Artic­le 25 of the GDPR, etc. Our gene­ral advice to you when it comes to deal­ing with inves­ti­ga­ti­ons by the super­vi­so­ry aut­ho­ri­ties is sum­ma­ri­zed here.

What are the key findings?

In gene­ral, the aut­ho­ri­ties found that the media web­sites they loo­ked at use a very high num­ber of coo­kies and third-party ser­vices, lar­ge­ly for the pur­po­se of user track­ing and adver­ti­sing. In most cases, users were given the oppor­tu­ni­ty to con­sent spe­ci­fi­cal­ly to the use of coo­kies and third-party ser­vices. But this con­sent was inva­lid in most cases, accor­ding to the aut­ho­ri­ties, which named the fol­lo­wing spe­ci­fic defects:

  • wrong sequence of events, in that coo­kies were pla­ced befo­re con­sent was obtained;
  • users not pro­vi­ded with ade­qua­te information;
  • no easy way for users to object to user track­ing as a who­le, which requi­res the user’s consent;
  • but­tons desi­gned in such a way as to mani­pu­la­te users to issue con­sent (“nud­ging”).

What is the cur­rent legal situa­ti­on with regard to cookies?

In accordance with the case law of the Ger­man Fede­ral Court of Jus­ti­ce, in its judgment of 28 May 2020 (Case No. I ZR 7/16) (only in Ger­man),  as well as the ECJ Judgment of 1 Octo­ber 2019 in the “Planet49” case (Case No. C‑673/17)  a year befo­re, web­site ope­ra­tors requi­re the user’s free and acti­ve con­sent in order to store non-essential coo­kies and track­ing mecha­nisms in the user’s brow­ser or device. The rele­vant sta­tu­te gover­ning this con­sent requi­re­ment is § 15(3) of the Ger­man Tele­me­dia Act (only in Ger­man) in con­junc­tion with Artic­le 5(3) of the E‑Privacy Direc­ti­ve, not the GDPR. Nevert­hel­ess, the super­vi­so­ry aut­ho­ri­ties app­ly the same sub­stan­ti­ve stan­dards for con­sent and stress in the cover let­ter (only in Ger­man) to their request for infor­ma­ti­on that free and acti­ve con­sent is requi­red. Accor­din­gly, web­site ope­ra­tors can­not satis­fy the cur­rent legal requi­re­ments by mere­ly allo­wing users to opt out or inter­pre­ting con­tin­ued use of the web­site as con­sent. In addi­ti­on, the Act Regu­la­ting Data Pro­tec­tion and Pro­tec­tion of Pri­va­cy in Tele­com­mu­ni­ca­ti­ons and Tele­me­dia (only in Ger­man) takes effect on 1 Decem­ber 2021, and con­ta­ins pro­vi­si­ons of its own about the form which con­sent must take. It remains to be seen how the new pro­vi­si­ons will be imple­men­ted in practice.

Our cri­ti­cism of the aut­ho­ri­ties’ investigation

It is typi­cal­ly easy for users to see that the web­site ope­ra­tor is try­ing to obtain their lawful con­sent given the pro­mi­nent pla­ce­ment of coo­kie ban­ners, which are some­ti­mes hard to over­look. But the super­vi­so­ry aut­ho­ri­ties cite this very design of the ban­ners in online media as a defect: “mani­pu­la­ti­on of users: the design of the con­sent ban­ners dis­plays num­e­rous forms of ‘nud­ging,’ mea­ning that users are sub­li­mi­nal­ly pres­su­red to con­sent e.g. by making the ‘con­sent’ but­ton a color which stands out more than the ‘refu­se’ but­ton, or by making the pro­cess of refu­sing con­sent need­less­ly com­pli­ca­ted.” The aut­ho­ri­ties’ cri­ti­cism of “nud­ging,” i.e. crea­ting an incen­ti­ve for the user to act in a cer­tain way, is too strong, in our view. Spe­ci­fi­cal­ly, they cri­ti­ci­ze nud­ging in all its forms, but neither the GDPR not the E‑Privacy Direc­ti­ve or the Ger­man Tele­me­dia Act estab­lish direct gui­de­lines in this regard or pro­hi­bit web­site ope­ra­tors from gui­ding users in any way. Con­trol­lers should of cour­se make it clear to users that they have the right to con­sent or object, but crea­ting a visu­al incen­ti­ve to do so does not neces­s­a­ri­ly con­flict with this objective.

Sum­ma­ry

Coo­kies and track­ing by third-party pro­vi­ders are still a cur­rent topic for super­vi­so­ry aut­ho­ri­ties pre­cis­e­ly becau­se we have yet to find a spe­ci­fic best-practice solu­ti­on which pro­vi­des the grea­test pos­si­ble bene­fit for both web­site ope­ra­tors and users. It remains to be seen whe­ther the super­vi­so­ry aut­ho­ri­ties will take their fin­dings as a reason to expand their inves­ti­ga­ti­on to other sec­tors of the com­pa­ny and to con­ti­nue to edu­ca­te the public about the use of cookies.

Should you recei­ve a let­ter from your super­vi­so­ry aut­ho­ri­ty (the aut­ho­ri­ties are now sen­ding out requests for infor­ma­ti­on rela­ting to third-country trans­fers), do not let your fear of pos­si­ble fines or pen­al­ties dri­ve you to reve­al ever­y­thing wit­hout thin­king. Ins­tead, fol­low our recom­men­da­ti­ons.

Moreo­ver, the gene­ral rule appli­es here as well: pre­ven­ti­on is bet­ter than reac­tion. Keep the docu­men­ta­ti­on of your data flows as up-to-date as pos­si­ble, in con­sul­ta­ti­on with your data pro­tec­tion offi­cer, and keep in mind what the data pro­tec­tion aut­ho­ri­ties are curr­ent­ly focu­sing on. We would be glad to help you with docu­men­ta­ti­on and posi­tio­ning yours­elf so as to con­form with data pro­tec­tion law. If a request for infor­ma­ti­on nevert­hel­ess arri­ves in your mail­box, our exten­si­ve expe­ri­ence deal­ing with super­vi­so­ry aut­ho­ri­ties places us in an ide­al posi­ti­on to effec­tively advi­se you about what steps to take next.

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