Microsoft Corporation – Court Ruling (Germany, 2024)

The controller, Microsoft Corporation, provides the service “Microsoft advertising” which enables website operations to place adverts in the search results of the "Microsoft Search Network". It can also collect information about the visitors to a website and to place targeted adverts for these visitors via cookies. The data subject visited third-party websites. She claims that the controller’s cookies were placed on her device without her consent. A forensic analysis of the recorded network traffic revealed that cookies from the controller had been placed on the data subject’s device without their consent. The data subjected sought injunctive relief at the Regional Court of Frankfurt am Main (“Landgericht Frankfurt am Main”) and requested the court to order the controller to refrain from using cookies on her end devices without her consent. The court refused to issue an interim injunction and dismissed the case. The court stated that grounds for an injunction were lacking and that the data subject did not demonstrate that they would otherwise suffer considerable disadvantages and that they cannot reasonably be expected to wait for the main proceedings. The court held that the data subject had the option to block the storage or reading of cookies via the internet browser settings, while the controller would have to change its complete processing, costing enormous effort in terms of time and money. Thus, the balance of interests is therefore in favour of the controller. The data subject appealed this decision at the higher regional court of Frankfurt (“Oberlandesgericht Frankfurt am Main”), arguing that the balance of interests is in their favour as there can be no right to exercise an unlawful business model. Moreover, the data subject had to live with the uncertainty of the whereabouts of its data, the associated loss of control and the fear of disclosure to unauthorised third parties. The data subject requested the court to amend the first judgement, to grant the i