4 Findings from the ruling on consent banners

von Katrin Nebermann

4 Findings from the latest judgment and paper on consent banners

The Regional Court of Munich I declared the consent design on the website focus.de unlawful in the first instance (judgment of 29.11.2022 – Ref.: 33 O 14766/19). The latest version of the supervisory authorities’ guidance for website operators from December 2022 also deals intensively with the issue of the design of consent banners.

It is therefore time to put your own consent banner to the test again.

We have the following recommendations for you, which are based on the Focus judgment and the latest version of the guide:

1. it is better to dispense with consent banners if neither cookies requiring consent nor services are used:

“Not every use of cookies or subsequent tracking requires consent per se. Therefore, corresponding consent banners should only be used if consent is actually required.”

2. offer an opt-out option on the first level of your consent banner:

“A “Settings or Reject” button that leads to another level of the banner is not sufficient at this point.”

3. design the buttons for consent and rejection in the same way:

“The option of not giving consent must be clearly presented as an equivalent alternative to the “give consent” option. This can be assumed if, for example, a “Continue without consent” button comparable in size, color, contrast and typeface can be found next to a “Give consent” button.”

And in general: only transfer data to US providers on the server side without personal reference (as is the case with conversion uploads with etracker analytics).

“Personal data processed in connection with the regular tracking of user behavior on websites or in apps cannot be transferred to a third country on the basis of consent pursuant to Art. 49 (1) (a) GDPR.”

See also our blog article on the ruling and the latest guidance.