Claimant: Bundesverband der Verbraucherzentralen und Verbraucherverbände - Verbraucherzentrale Bundesverband e.V. (vzbv) – Court Ruling (Germany, 2020)

The German consumer organisation Bundesverband der Verbraucherzentralen und Verbraucherverbände - Verbraucherzentrale Bundesverband e.V. (vzbv, the claimant) filed a lawsuit against advocado GmbH (advocado, the defendant), a German-based company that runs an online platform where attorneys can offer their services. The defendant's website had used a cookie banner with pre-ticked boxes for the use of marketing and analytics cookies. This included the use of tools such as Google Analytics that entail a data transfer to third countries. The claimant argued that the data processing in connection with the placed cookies was unlawful under Article 6(1) GDPR: A user's consent under Article 6(1)(a) GDPR could not be considered valid under Articles 4(11) and 7 GDPR, especially since the boxes were pre-ticked. Moreover, the claimant claimed that the defendant had violated Articles 5(1)(a), 13/14, 26 and 44 et seqq. GDPR as it had failed to properly inform users of the scope of intended processing activities, joint controllers and international data transfers in connection with the use of cookies. The defendant stated that it had based the use of cookies on legitimate interests under Article 6(1)(f) GDPR until the CJEU issued its decision C-673/17 on 01.10.2019 ("Planet 49"). Afterwards, the defandent argued that they changed the legal basis for processing to consent under Article 6(1)(a) GDPR, which it considered valid under Articles 4(11) and 7 GDPR. The defendant also stated that it was the sole controller for the processing activities - there were no joint controllers involved, only processors. (Furthermore, the claimant had also argued that some provisions in the defendant's general terms and conditions were unlawful from a civil law / consumer protection law perspective. This will not be discussed further in this summary.) *Was it necessary to ask for the users' consent under Article 6(1)(a) GDPR or could the processing activities in connection with the use of marketing and analytics cookies be based on legitimate interest under Artilce 6(1)(f)? *Was the consent given by users' when interacting with the defendant's cookie banner valid under Articles 6(1)(a), 4(11) and 7 GDPR? *Did the defendant violate GDPR provisions on transparency? *Was the defendant the sole controller regarding the processing activities in connection with the use of marketing and analytics cookies or were there any joint controllers? = The court held that the marketing and analytics cookies used by the defendant can only be placed with the users' consent under Article 6(1)(a) GDPR: § 15(3) Telemediengesetz that deals with such cookies must be interpreted in light of Article 5(3) e-Privacy Directive, which requires consent for cookies not strictly necessary for technical reasons. Taking into consideration the design of the cookie banner and the lack of information provided to a website user, the court held that consent given could not be considered valid under Articles 6(1)(a), 4(11) and 7 GDPR. The banner featured pre-ticked boxes and a big "OK" button. The option "use only necessary cookies" was designed to not look like an interactive button but rather a link. Consent could therefore not be considered "freely given" and was invalid. = The court further held that the defendant violated Article 13 GDPR by mentioning an incorrect transfer mechanism under Articles 44 et seqq. GDPR for data transfers in connection with the use of cookies. = Lastly, the court held that the use of Google Analytics results in joint controllership of the website provider using this tool and Google. Google does not qualify as the website provider's processor under Article 4(7). This is because Google does not process the data solely for the purpose of use by the website provider. Rather, Google, like other third-party providers, expressly reserves the right to process the data for its own purposes as well. The fact that the defendant and Google entered into a data processing agreement under Article 28 GDPR does not change this assessment. The court's legal view is in line with the [https://www.datenschutzkonferenz-online.de/media/dskb/20200526_beschluss_hinweise_zum_einsatz_von_google_analytics.pdf official opinion of the "Datenschutzkonferenz"], a gathering of all German DPAs.