4 learnings from the latest judgement and supervisory authorities’ paper on consent banners
In the first instance, the Regional Court of Munich I declared the consent design on the website focus.de to be unlawful (judgement 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.
Therefore, it is time to once again put your own consent banner to the test.
We recommend the following, based on the Focus ruling and the latest version of the supervisory authorities’ paper:
1. It is better to do without consent banners if neither cookies nor services requiring consent are used:
2. Offer an opt-out option on the first level of your consent banner:
“A ‘Preferences or Decline’ button that leads to another level of the banner is not sufficient at this point.”(Translated by the author)
3. Design the buttons for consent and decline in the same way:
“The option not to give consent must be clearly presented as an equivalent alternative to the option ‘Give consent’. This can be assumed if, for example, a button ‘Continue without consent’ can be found next to a button ‘Give consent’ which is comparable in size, colour, contrast and typeface.”(Translated by the author)
And in general, the following applies: Transfer data to US providers only on the server side without personal reference (as is the case with the conversion upload with etracker Analytics).
“Personal data processed in connection with the regular tracking of user behaviour on websites or in apps cannot, in principle, be transferred to a third country on the basis of consent pursuant to Art. 49(1)(a) GDPR.”(Translated by the author)