Court case 10 A 5385/22 – Court Ruling (Germany, 2025)

The controller is a publishing house that publishes newspapers and content on the Internet at www.noz.de. The controller uses a consent banner (so-called cookie wall) on its website. The defendant is the DPA of Lower Saxony (LfDI). In 15 November 2022, the DPA carried out a technical test on the controller’s website and found that when it was first accessed, without prior consent, the US service Google Tag Manager was contacted meaning that user data were transmitted to Google’s US server and data were stored on the user's device. Also, a consent banner titled "optimal user experience" appeared with the options to "Accept all", in the middle of the banner, or "Accept & close x", at the top right (the x referring to the symbol used to close a window). In order to refuse consent users had to scroll down, select the "Settings" button and at the window opened on a second level, the user must check whether the opt-in controls are switched off in order to then select the "Save selection" button. On 23 November 2022, the DPA issued a decision ordering the controller; a. To implement the requirements for effective consent in accordance with Article 4(11) and Article 7 GDPR, insofar as this is necessary for the lawfulness of the use of local storage objects, tracking technologies and third-party services; b. To obtain effective consent for the Google Tag Manager service integrated in the website in accordance with Section 25 (1) of the german Telecommunications-Digital Services Data Protection Act (TTDSG) and Art. 6(1) (a) GDPR or to remove the service; and c. To comply with the orders within 1 month. The DPA argued that the consent was not fully informed and voluntary in accordance with Article 4(11) GDPR. At the first level of the banner there was no literal mention that the buttons "Accept all" and "Accept & close x" provide two options for granting consent and also there was no option to refuse consent. On December 2022, the controller filed a case before Adm