Court case W211 2281997-1/5 E – Court Ruling (Austria, 2024)

Upon opening the controller’s website, a cookie banner popped up with an option to ‘accept all’ cookies or to ‘manage settings’. Once the data subject selected the ‘manage settings’ button and tried to refuse consent another banner popped up explaining that only by accepting certain tracking cookies the platform can operate in a meaningful way and that therefore consent is required. The data subject, represented by noyb, lodged a complaint with the Austrian DPA against the controller of the website, an Austrian news magazine. They alleged a violation of Article 5(1) GDPR and 6(1) GDPR for being forced to consent to Google and other tracking cookies in order to access the content on the controller’s website. Firstly, the DPA noted that the media privilege as per Article 85 GDPR did not apply as the data processed via the aforementioned services was not used for the dissemination of journalistic information. In fact, the data processing was carried out purely for advertising or analysis purposes and therefore, the media privilege does not apply. Secondly, the Austrian DPA stated that the cookies in question are not strictly necessary and their use must therefore be subject to consent by the data subject. However, the consent in the present case cannot be considered ’voluntary’ pursuant to Article 4(11) GDPR as the data subject did not have a real choice and was not in a position to refuse consent. Thirdly, the DPA concluded that legitimate interests according to Article 6(1)(f) GDPR are not relevant, as there is already a violation of the applicable ePrivacy legislation that requires consent. For that reason, the DPA held that the processing lacked a legal basis under Article 6(1) GDPR and breached the principle of good faith under Article 5(1)(a) GDPR. As a result, the DPA ordered the controller to adjust its cookie banner and resolve the above mentioned GDPR violations within 8 weeks of the decision. However, the controller appealed the decision before the Austr