Every tenth cookie banner violates applicable law

Consumer associations are joining forces to protect consumers even better from the collection of their data. As a prelude, they have already initiated the cookie banner investigation in April 2021. In the process, they examined websites from different sectors, such as food delivery services, telecommunications, fitness studios or comparison portals.

As a result, the federal association reported that 10 percent of the cookie banners examined clearly violated applicable law. As a result, the consumer associations had issued warnings to around 100 companies and had several cease-and-desist letters signed.

But what are warning letters actually? Warning letters are used to demand that companies cease unlawful behavior. Consumer associations may be entitled to issue warning letters under Section 8 (3) No. 3 of the German Unfair Competition Act (UWG). In combination with cease-and-desist declarations backed by penalties, they are an effective means for consumer associations to protect the rights of consumers. By signing the cease-and-desist declarations, companies undertake to pay a penalty if they were to commit the warned legal infringement again.

The audit of the associations also revealed that some websites are moving in legal gray areas in that companies are using so-called dark patterns. In relation to cookie banners, dark patterns are a method of enticing website visitors to agree to all cookies by means of the (visual) design of the banners. The legality of dark patterns is also questioned by the data protection association noyb (none of your business), which has filed complaints against several companies with the data protection supervisory authorities (see our article “Noyb files complaints with data protection supervisory authorities against cookie banners”). The outcome of these proceedings is still being awaited.

The action of the consumer associations shows that companies should also take data protection seriously when designing their websites. Violations can quickly become expensive. Not only do they face high fines under the GDPR, but also warnings under competition law. In addition, legal violations can lead to damage to your image.

If you too are not sure whether your website sets cookies and whether your cookie banner is designed in compliance with data protection, come to us! We will help you with a quick check of your website and can tell you exactly what action you need to take.

Simply use our contact form to do so. You can also reach us by phone at our headquarters in Hutthurm on +49 (0) 8505 91927 – 0 or at our branch in Munich on +49 (0) 89 413 2943 – 0.