Germany: German Authorities: Tracking And Profiling Cookies Require Opt-In Consent

Last Updated: 7 June 2018
Article by Andreas Splittgerber and Sven Schonhofen LL.M.

Most Popular Article in Germany, June 2018

On 26 April 2018, the Conference of German Data Protection Authorities (German DPAs) released a highly criticised position paper on the applicability of the German Telemedia Act (TMA) after 25 May 2018 (Position Paper, available in German here). The Position Paper clearly states that tracking and profiling cookies now require informed prior opt-in consent.

Position Paper

Webtracking is governed by the General Data Protection Regulation (GDPR) as well as the ePrivacy Directive. The ePrivacy Directive is currently being revised. A new ePrivacy Regulation was supposed to enter into force in tandem with the GDPR on 25 May 2018, but it is delayed and we do not expect it to enter into force before the end of 2019. The German legislator has not updated the TMA due to the upcoming ePrivacy Regulation.

The Position Paper outlines the German DPAs' view on the relationship of the GDPR and the TMA and its consequences on the use of cookies. The Position Paper states that the GDPR shall take precedent unless national law prevails because of an opening clause or conflict of law rule. Article 95 of the GDPR is such a conflict of law rule. It provides that the GDPR shall not impose additional obligations regarding processing data in connection with the provision of publicly available electronic communications services in public communication networks in relation to matters for which they are subject to specific obligations with the same objective set out in the ePrivacy Directive. However, the German DPAs explain that Article 95 of the GDPR does not apply with regard to the provisions in the TMA that govern tracking and reach measurement.

Next, the Position Paper notes that the use of cookies requires a legal justification under the GDPR, in particular in Article 6(1) GDPR, and then differentiates between:

  • Strictly necessary cookies may be justified by Article 6(1)(b) of the GDPR (performance of a contract) or Article 6(1)(f) of the GDPR (legitimate interests); and
  • Tracking and profiling cookies require informed prior opt-in consent (Article 6(1)(a) of the GDPR). Cookies may not be dropped before such consent has been obtained.

Implementation of the requirements set out by the German DPAs

In order to implement the requirements set out in the Position Paper, organisations would have to use cookies as follows:

  • Only strictly necessary cookies can be dropped when a user visits a website. Other tracking and profiling cookies cannot be dropped immediately when a user visits a website.
  • Opt-in consent must be obtained on a website, for example, by using a cookie banner that includes an "Accept" button. Only after the user clicks the "Accept" button can tracking and profiling cookies be dropped.
  • The user must be able to get information about how cookies are used on a website, for example, in a cookie policy.

Criticism of the Position Paper

The Position Paper has received a great deal of criticism. For example, Bitkom, the Association for Information Technology, Telecommunications and New Media, has released an opinion (available here) and states that the Position Paper merely sets out a politically desired result. It is incomprehensible why the TMA will no longer applies and why the Position Paper only takes consent into consideration as legal basis for tracking and profiling cookies.

In its analysis of the Position Paper (available here), the German Advertising Association is critical that the German DPAs require consent for all tracking and profiling cookies in an undifferentiated and abstract manner. Instead, the German Advertising Association suggests that legitimate interest might also be a legal basis, taking into consideration the categories of personal data, technologies used, technical and organisational security measures, purposes of processing, use cases, pseudonymisation of data and transparency for each specific cookie.

Reaction to the Position Paper by other supervisory authorities and organisations

Other supervisory authorities have not yet provided (updated) guidance on the legal justifications for the use of cookies. The Information Commissioner's Office, the UK data protection authority, for example, has implemented an opt-out solution on its own website, together with a cookie tool.

Not many organisations have yet implemented the guidance set out in the Position Paper –possibly because of the short time since the publication of the Position Paper and the many concerns and criticism that have been raised regarding the Position Paper. Opt-out consent still seems to be the best practice that most organisations apply.


The intention of the German DPAs in publishing the Position Paper less than a month before the GDPR date and the reason for acting as a "substitute legislator" is not really clear. We also understand that it was not a unanimous decision by the German DPAs to issue the Position Paper.

The Position Paper is vague in many parts. The German DPAs only provide brief legal reasoning for their views. While they state that tracking and profiling cookies require opt-in consent and do not provide room for a case-by-case analysis, the German DPAs do not define tracking and profiling cookies. They also do not provide any guidance how consent may be obtained. However, the time for cookie banners stating "By continuing to surf on our website, you accept the use of cookies" will be over.

Further, this Position Paper will force the German view to be applied on an international level. Organisations will likely not provide different solutions on their websites for German users and for users from other countries.

The German DPAs have now reacted to the criticism of many stakeholders and started a consultation with stakeholders on the implementation of the Position Paper (see the German DPAs' press release here). The consultation period will end on 29 June 2018.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions