BGH - I ZR 7/16

Summary

The German Federal Court of Justice (BGH) ruled that pre-ticked consent boxes are invalid for both telephone advertising and the storage of cookies. This decision follows the CJEU's preliminary ruling in the 'Planet 49 case' and clarifies that such consent does not constitute an informed indication of the data subject's wishes under GDPR and previous data protection directives.

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Help BGH - I ZR 7/16: Difference between revisions From GDPRhub Jump to:navigation, search ← Older editVisualWikitext Revision as of 14:28, 16 July 2026 view sourceBms (talk | contribs)Bureaucrats, Interface administrators, noContributionReport, Administrators309 editsTag: Visual edit← Older edit Latest revision as of 07:45, 16 September 2026 view source Sfl (talk | contribs)Bureaucrats, Interface administrators, noContributionReport, Administrators567 editsm Line 82: Line 82: }}}} [[index.php?title=Category:2019]][[Category:2019]] Latest revision as of 07:45, 16 September 2026 BGH - VI ZB 39/18 Court: BGH (Germany) Jurisdiction: Germany Relevant Law: Article 4(11) GDPR Article 94 GDPR Article 95 GDPR Article 2(f) ePrivacy Directive 2002/58/ECArticle 5(3) ePrivacy Directive 2002/58/ECArticle 2(h) Directive 95/46/EC§ 1 (UKlaG - Injunctions Act Unterlassungsklagengesetz)§ 307 Civil Code (Bürgerliches Gesetzbuch - BGB)§ 7 Unfair Competition Act (Gesetz gegen den unlauteren Wettbewerb - UWG)§ 15 Telemedia Act (Telemediengesetz - TMG) Decided: 28.05.2020 Published: 28.05.2020 Parties: Bundesverband der Verbraucherzentralen und Verbraucherverbände – Verbraucherzentrale Bundesverband e. V. Planet49 GmbH National Case Number/Name: VI ZB 39/18 European Case Law Identifier: Appeal from: OLG Frankfurt (Germany) Appeal to: Original Language(s): German Original Source: Entscheidungsdatenbank des Bundesgerichtshofs (in German) Initial Contributor: n/a Following the CJEU's preliminary ruling in the "Planet 49 case" (C-673/17), the German Federal Court of Justice has decided on the question of which requirements must be met for consent to telephone advertising and the storage of cookies on the user's terminal device. Contents 1 English Summary 1.1 Facts 1.2 Holding 2 Comment 3 Further Resources 4 English Machine Translation of the Decision English Summary Facts See facts at the GDPRhub entry to the "Planet 49 case" (C-637/1/). The second checkbox containing a preselected tick used by the defendant (Planet 49) read as follows: English translation German original ‘I agree to the web analytics service Remintrex being used for me. This has the consequence that, following registration for the lottery, the lottery organiser, [Planet49], sets cookies, which enables Planet49 to evaluate my surfing and use behaviour on websites of advertising partners and thus enables advertising by Remintrex that is based on my interests. I can delete the cookies at any time. You can read more about this here.’ "Ich bin einverstanden, dass der Webanalysedienst Remintrex bei mir eingesetzt wird. Das hat zur Folge, dass der Gewinnspielveranstalter, [Planet49], nach Registrierung für das Gewinnspiel Cookies setzt, welches Planet49 eine Auswertung meines Surf- und Nutzungsverhaltens auf Websites von Werbepartnern und damit interessengerichtete Werbung durch Remintrex ermöglicht. Die Cookies kann ich jederzeit wieder löschen. Lesen Sie Näheres hier." In the explanation linked to the word "here", it was pointed out that the cookies would receive a specific, randomly generated number (ID) associated with the registration data of the user who entered his/her name and address in the web form provided. If the user with the stored ID would visit the website of an advertising partner registered for Remintrex, this visit should be recorded, as well as which product the user is interested in and whether a contract is concluded. Holding Following the CJEU's reasoning in its preliminary ruling, the BGH dismissed the defendants' appeal and, on the plaintiff's appeal, overturned the appellate judgment regarding cookie consent and restored the first instance conviction of the defendant: The declaration of consent by the preselected tick box does not constitute an "informed indication of the data subject's wishes" within the meaning of Article 2(h) Directive 95/46/EC or an "informed and unambiguous indication of the data subject's wishes" within the meaning of Article 2(h) GDPR. Therefore there is no legally valid consent for the data processing. The plaintiff is entitled to injunctive relief against the storage of cookies on his device under § 1 UKlaG in connection with § 307 BGB because the request for consent by a preselected tick box constitutes an "unreasonable disadvantage to the user". The request for consent by a preselected tick box further violates § 15 TMG. An interpretation of § 15 TMG in light of Article 5(3) Directive 2002/58/EC leads to the conclusion that there is no effective consent within the meaning of these provision if the storage of cookies is permitted by a present checkbox which the user must uncheck to refuse consent. Pursuant to Article 94 and 95 GDPR the above said fully applies also after 25.05.2018. Comment Share your comments here! Further Resources Share blogs or news articles here! English Machine Translation of the Decision The decision below is a machine translation of the original. Please refer to the German original for more details. FEDERAL COURT OF JUSTICE ON BEHALF OF THE PEOPLE JUDGMENT I ZR 7/16 Promulgated on: 28 May 2020 Führinger Clerk of the court as clerk of the court registry in the litigation Reference book: yes BGHZ: no BGHR: yes Cookie consent II Directive 2002/58/EC Art. 5(3) and Art. 2(f); Directive 2009/136/EC Art. 2(5); Directive 95/46/EC Art. 2 lit. h; Regulation (EU) 2016/679 Art. 4 No. 11; UKlaG § 1; BGB § 307 Bm, Cl; TMG § 15 para. 3 a) Effective consent to telephone advertising within the meaning of Section 7 (2) no. 2 case 1 UWG does not exist if the consumer, when declaring consent, is confronted with an elaborate procedure of deselecting partner companies included in a list, which may cause him to refrain from exercising this choice and instead leave the choice of advertising partners to the entrepreneur. If the consumer, in the absence of knowledge of the content of the list and without exercising the right of choice, does not know which products or services of which traders the consent covers, there is no consent for the specific case. b) § Section 15 subsec. 3 sentence 1 of the German Telemedia Act (TMG) must be interpreted in conformity with Article 5 subsec. 3 sentence 1 of Directive 2002/58/EC to the effect that the service provider may only use cookies to create user profiles for the purposes of advertising or market research with the consent of the user. An electronically declared consent of the user, which allows the retrieval of information stored on his terminal device by means of cookies by way of a pre-set checkbox, does not satisfy this consent requirement. BGH, Judgment of 28 May 2020 - I ZR 7/16 - OLG Frankfurt am Main Frankfurt am Main Regional Court ECLI:DE:BGH:2020:280520UIZR7.16.0 At the hearing on 30 January 2020, the First Civil Senate of the Federal Court of Justice (Bundesgerichtshof) by the Presiding Judge Prof. Dr. Koch, the Judge Dr. Löffler, the Judge Dr. Schwonke, the Judge Feddersen, and the Judge Dr. Schmaltz found to be right: The appeal of the defendant against the judgment of the 6th Civil Senate of the Higher Regional Court Frankfurt am Main of 17 December 2015 is dismissed with the proviso that the addition mentioned in the second paragraph of the operative part of the judgment reads "(...) if this provision is used in conjunction with a list as reproduced in Annex K 1 to the application". On appeal by the plaintiff, the aforementioned judgment is set aside with regard to the costs and insofar as it was found to the plaintiff's disadvantage. To the extent of the annulment, the appeal of the defendant against the judgment of the Regional Court Frankfurt am Main - 6th Civil Chamber - of 10 December 2014 is dismissed. The plaintiff shall bear 1/3 of the costs of the proceedings at first instance. The remaining costs of the legal dispute shall be borne by the defendant. By law Facts: 1 The plaintiff is the Federal Association of Consumer Centres (Bundesverband der Verbraucherzentralen), which is registered in the l

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