LG Frankfurt: “non-essential” cookies may not be set without required consent

In a case brought by the “competition centre”, the Frankfurt Regional Court prohibited the operator of a website (a company that operates over 50 fitness studios) from storing non-essential cookies and comparable storage objects in the user’s browser without the necessary consent of the user. In addition, the operator was prohibited from indicating in the cookie settings that non-essential cookies were deactivated, although this was not the case (LG Frankfurt a.M., judgement of 19.10.2021, ref. 3-06 O 24/21 – not legally binding).
Tracking cookies from various providers have been used on the Company’s website, including to track users across multiple websites for conversion tracking and to serve targeted advertising.

As soon as the website was accessed by a user, all cookies were set immediately, even before the user was given the opportunity to give his consent via a cookie banner. Files were also permanently stored in the so-called web storage, which made it possible to continue tracking the user even after closing and restarting the browser. To make it worse, although if the user select or deactivate unnecessary cookies via the cookie banner, all cookies were always set regardless of the user’s selection. According to the website operator, this was probably the responsibility of the service provider of the cookie banner.
The competition centre and also the court assessed this as a violation of Section 3a UWG in conjunction with Section 15 (3) of the German Telemedia Act (TMG) and as misleading. The website operator is liable for the error of the service provider without the possibility of exoneration according to Section 8 (2) UWG.
Our recommendation:
It is and remains important to point out that, no “unnecessary” (!) cookies may be set before the user has interacted with the cookie banner and that unnecessary cookies may only be set with the consent of the user. It should be obvious that the user’s decision should actually be taken into account. In this respect, it is also important to hold one’s own service provider accountable.

(UNVERZAGT Rechtsanwälte)