On December 17, 2015, Frankfurt am Main Higher Regional Court issued a ruling on a long-disputed topic. Germany had not explicitly transposed the 2009 Cookie Directive, which requires user consent, since the provisions of the German Telemedia Act would sufficiently reflect the requirements – a view also held by the European Commission. German data protection authorities fail to share this view, however, so that the judgment of Frankfurt Higher Regional Court was eagerly awaited.

Cookies are used on almost all websites, offering operators a variety of options, such as saving shopping carts or creating user profiles. On the other hand, this also poses certain risks for users which is why consent is required. It is controversial in what form this consent has to be given in Germany.

Subject of the proceedings before Frankfurt am Main Higher Regional Court was a consent form where the checkbox to consent to the use of cookies was already pre-filled. In addition, users were offered a link to further information about the cookies. The Higher Regional Court affirmed not only the admissibility of such an opt-out solution, but also considered the information available via the link to be sufficient.

Practical tip: Frankfurt Higher Regional Court affirmed the common practice of opting out when consenting to cookie use and thus contributed to legal certainty.