Court case 93 O 167/20 – Court Ruling (Germany, 2023)

Plaintiff is the umbrella organization of the consumer advice centers in Germany. Defendant is a media company. The media company integrated about 18 third-party-cookies on its website like Double Click from Google. They relied this on Art. 6 (1) (f) GDPR. The company did not implement any information about that on their start page and linked to the privacy policy not before implementing and analyzing the cookies. These cookies enabled profiling via tracking across different platforms. The plaintiff sent a warning on 20 June 2019 which the defendant declined on 14 August 2019. The defendant implented in August 2019 an opt-in cookie banner and changed their privacy policy. The plaintiff is of the opinion that there is no legitimate interest of the defendant and neither the weighting up would turn out in favor of the defendant. The plaintiff criticizes the insufficient information and continues that the incorrect legal basis leads to the false imagination that it is allowed to implement cookies without consent. The defendant is of the opinion that it is necessary because they otherwise would not be able to implement their offers on their website free of cost and also the cookies were set by third parties. The court is of the opinion that browser settings allowing a transfer of data are no active consent for lack of a deliberate decision of the affected persons. Further the court held that the setting of cookies from third parties is attributable to the defendant as they were payed for that. The court does not follow the opinion of the defendant that the freedom of press includes the advertisement as there is a certain part of jounralistic work needed for Art. 85 GDPR.