Please find below the latest information from our partner janolaw on this topic:
In its cookie ruling published on Tuesday, the European Court of Justice (ECJ) set the course for the future: “The use of cookies requires the active consent of the internet user.”
What is a cookie?
A cookie is a text file containing information that enables a web server to recognize a user and save settings.
What is this about?
Anyone who wishes to set (tracking) cookies on a website visitor’s device or read cookies that have already been set—for example, using
tracking tools (e.g., Google Analytics, econda, etracker)
advertising/remarketing tools (e.g., Google AdSense, Google Remarketing, YouTube videos)
plugins (e.g., Facebook buttons, Google Maps),
will need to address this issue in the future.
We use a so-called cookie banner to obtain consent. Is that sufficient?
Generally speaking, no.
Most cookie banners contain only a general notice about the use of cookies and a statement such as, “By using this website/online store, you agree to our use of cookies.” In these cases, cookies are usually set immediately, and mere use of the site is interpreted as consent.
According to the ECJ ruling, that is not sufficient!
Consent must be given consciously in each individual case, similar to subscribing to a newsletter. And no cookie may be set before consent is given. In addition, information must be provided regarding the duration of the cookie’s functionality and access by third parties (e.g., Google, Facebook).
Who will be affected by the ruling in the future?
All online store and website operators who set persistent cookies on visitors’ devices (computers, tablets, smartphones) or analyze cookies that have already been set are affected. “Persistent” means that these cookies are not deleted when the browser is closed and, in many cases, follow the website visitor for years as they navigate the Internet. Browsing logs are analyzed primarily by companies such as Google, Facebook, etc., for marketing purposes and profiling.
Who is NOT affected by the ruling?
Anyone who uses only so-called session cookies, which are required, for example, for page loading, the login process, or the shopping cart process. These technically necessary cookies are deleted when the browser is closed.
Those who sell on marketplaces (e.g., Amazon or eBay). In these cases, the platform operators are responsible for ensuring that cookies are used in compliance with the law.
What happens next?
The ruling is a preliminary ruling by the European Court of Justice (ECJ), meaning the final decision will now have to be made by the German Federal Court of Justice (BGH), taking into account the German legal situation.
Here lies the legal crux of the matter: Under current law, the relevant Telemedia Act (TMG) still permits the use of cookies for pseudonymous profiling without prior consent, but with a subsequent opt-out option. The German TMG is now set to be revised in light of the ECJ ruling. At the European level, discussions are still ongoing regarding a uniform EU-wide approach to cookies. However, the adoption of the so-called ePrivacy Regulation is not yet in sight.
The technical implementation has already been completed in our working version and will be available as a configurable option in the stores with the next update. For now, the final solution will look like this:
(click to enlarge)
At present, however, implementing this would result in a massive competitive disadvantage, as data necessary for marketing would simply not be collected. Unless, of course, customers are well-informed and understand the benefits of cookies and similar technologies. Experience shows that fewer than 1% of customers use the currently legally compliant opt-out solution for non-essential cookies; therefore, an ECJ-compliant implementation would discard a large portion of the statistics collected by tracking scripts and make data-driven performance marketing impossible (i.e., for example, evaluating how effective an advertising campaign is).
Conclusion:
We consider it our duty to use our expertise to protect you, our customers, from this impractical implementation proposal by the ECJ, and we will first await the final ruling of the Federal Court of Justice (BGH) before taking any further action (e.g., in the form of a short-term update).
