German DPAs: Situation regarding consent for cookies is “unacceptable”

In February 2015, the German data protection authorities adopted a resolution with the title “Tracking of user behavior on the Internet” (German).

In this resolution, the authorities urge the German government to finally transpose the standards of European directive 2002/58/EC (so called ePrivacy Directive). The authorities are of the opinion that the current German data protection law (especially the German Telemedia Act (Telemediengesetz)) does not correctly implement Art. 5 para 3 of directive 2002/58/EC (in the revised version of directive 2009/136/EC). According to Art. 5 para 3 of the ePrivacy Directive, European “Member States shall ensure that the storing of information, or the gaining of access to information already stored, in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user concerned has given his or her consent, having been provided with clear and comprehensive information, in accordance with Directive 95/46/EC, inter alia, about the purposes of the processing”.

This provision is commonly cited as the European legal basis for the necessity to obtain the consent of Internet users, if “cookies” or similar tracking technologies are use on websites or on mobile devices (see for example: Working Document 02/2013 providing guidance on obtaining consent for cookies by the Art. 29 Working Party, PDF).

The German authorities are of the opinion that the implementation of these requirements under European law is imperfect in German law and especially in the German Telemedia Act. The federal government considers the current requirements of the Telemedia Act as sufficient. Last year, the German website “Telemedicus” published the “Questionnaire on the implementation of the Article 5(3) of the ePrivacy Directive” (PDF), where the German government explains how the European requirements have been implemented in the German Telemedia Act.

Telemedicus also asked the European Commission, if Germany correctly transposed the provisions of the ePrivacy Directive. The answer: “Yes, we can confirm that Germany has transposed the revised ePrivacy Directive into national law.” (German website)

But German authorities oppose: “This view is incorrect”. According to their resolution, the continued inaction of the federal government has the consequence that presently those affected cannot adequately exercise their right to privacy under Art. 5 para 3 of the ePrivacy Directive against a service provider in Germany. They conclude that the current situation is “unacceptable”.

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