German BGH Ruling On Consent For Cookies And Third-Party Advertising
In 2013, Planet49 GmbH (“Planet49”), a German website, organized a promotional lottery online. To participate in the lottery, users were required to enter their postcode, which then prompted users to provide their names and addresses. Beneath this request for names and addresses, Planet49 sought two consents from users.
The first consent was sought through the use of an unticked box. It pertained to users being contacted by post, telephone or email/SMS by third-party partners for promotional offers. The relevant language included a hyperlink to 57 companies along with their addresses, commercial sector and the method of communication used for advertising (email, post or telephone). The word “unsubscribe” appeared next to each of these companies. A note preceded the list of companies to state that if the user did not unsubscribe from any or a sufficient number of these third parties, Planet49 would choose the third parties partners/sponsors for the user at its discretion with a maximum number of 30 third parties.
Consent for Third-Party Advertising: With respect to consent for third-party advertising activities, the BGH ruled that consent was not valid in this case, as it was not sufficiently informed and specific. As the consent process was set up, consumers were confronted with 57 third-party partners who could contact them for marketing purposes. By ticking the relevant checkbox without having unsubscribed from a significant number of partners, Planet49 was making the selection of which partners could contact the consumer. In BGH’s view, this elaborate process encouraged the consumer to refrain from selecting the advertising partners that were consequently selected by Planet49. According to the BGH, if the consumer does not know to which third party he has given consent to contact him for marketing purposes, due to a lack of knowledge of the content of the list and without exercising the right to select partners, there is no informed and specific consent.
Read the BGH’s press release (in German).