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Tracking cookies under attack in Germany

Consumer Organizations are stepping up the fight against user tracking without consent. First legal proceedings may be under way for unlawful use of tracking cookies in Germany.

This week, The Federation of German Consumer Organizations (VZBV) filed a formal complaint against eight media companies because of their use of tracking cookies on their websites.

This was stated by Data Protection Expert Ute Bernhardt from the Consumer Center Saxony-Anhalt at the Network Conference for Media Competence on October 22, 2019 in Halle (near Leipzig), online magazine Golem.de reports.

Currently, the VZBV has no further comments regarding the complaint, however it supposedly concerns ePrivacy violations, such as missing consent for accessing/storing cookies on users’ devices as well as failing to inform users of data processing by cookies (Article 12, 13 and 26 of the GDPR).

Germany tightens the grip on cookies and online tracking

The complaint comes in the wake of the European Court of Justice’s (ECJ) ruling against German online lottery website Planet49. Here the ECJ stated that storing and retrieving cookies requires the user’s active consent.

Link: ECJ ruling against Planet49 – cookies require active consent

However, it’s not the first German clash with tracking cookies.

In April 2019, the DSK (Conference of German Data Protection Authorities) released stricter requirements for the use of tracking cookies and how to collect valid consent.

The authorities made it clear that users shall be provided with a real choice regarding cookies. An ‘OK’ button is not sufficient for collecting valid consent.

Also, tracking may only start after the user has actively given consent (e.g. by accepting cookies). All cookies, tools and scripts must be deactivated until valid consent is obtained.

Bavarian data protection authority to impose fines

According to Heise.de, the Bavarian Data Protection Authority (BayLDA) in the meantime announced that it will begin issuing the first fines against a number of companies.

Earlier this year, the BayLDA investigated 40 company websites’ cookie consent solutions, only to find poor results and lack of compliance to ePrivacy and GDPR.

The authority expects, among other, that websites will collect valid consent if they use tracking tools from third-party providers such as Google’s advertising network (e.g. Google Analytics), or hidden ‘pixels’ such as Facebook Pixel.

Should the affected media not respond to the warning by the VZBV and, for example, sign a declaration of discontinuance, it should come to legal proceedings.

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