OLG Köln - 6 U 80/23

OLG Köln - 6 U 80/23
Court:	OLG Köln (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 4(11) GDPR
Decided:	19.01.2024
Published:	23.01.2024
Parties:	WetterOnline Meteorologische Services GmbH
National Case Number/Name:	6 U 80/23
European Case Law Identifier:
Appeal from:	LG Köln 33 O 311/22
Appeal to:
Original Language(s):	German
Original Source:	Verbraucherzentrale NRW e.V., Beratungsstelle Köln (in German)
Initial Contributor:	nzm

The Higher Regional Court of Cologne, on appeal, ordered a controller to provide for an equivalent opt-out option on a cookie banner, either on the first or second layer and to refrain from using an "Accept and Close X" button on the banner.

English Summary

Facts

The North Rhine Westphalia Consumer Protection Association (Verbraucherzentrale NRW) claimed for an injunction against the use of cookie banners on wetteronline.de, a wesite operated by WetterOnline Meteorologische Services GmbH, the controller. The controller used a cookie banner without providing an opt-out option on the first layer – the data subject could only opt out by clicking on the “Settings” button to reach the second layer, where they then had an “Accept all” button or a “Save” button. The cookie banner also had an “Accept & Close X” button in the top-right corner.

In a judgement dated 4 May 2023, the Regional Court of Cologne (Landgericht Köln, LG Köln) dismissed the action as it considered the claim of the Association to be too broad and claimed that it could not impose a specific cookie banner design on the controller. The Association appealed against this judgement to the Higher Regional Court of Cologne (Oberlandesgericht Köln, OLG Köln) and specified its claim.

Holding

Firstly, the OLG Köln considered that the controller designed their cookie banners without an equivalent opt-out option either at the first or second layer. The OLG pointed out that the average user does not realise what the “Save” button represents. Therefore, the OLG decided that consent could not be regarded as freely given and sufficiently informed under Article 4(11) GDPR.

Secondly, regarding the “Accept & Close X” button, the OLG considered that the “X” symbol is known to users as a way to close a window, but not to consent to the use of cookies. The average user would not be aware that this constitutes consent, even if the “Accept & Close” is located directly next to the “X” symbol. The OLG also noted that it was not easy for data subjects to recognize that the “Accept & Close” and the “X” symbol were one and the same button. Therefore, the OLG considered that this could not be regarded as unambiguous under Article 4(11) GDPR.

With regard to these infringements, the OLG therefore ordered the controller to refrain from using such a cookies banner design and make sure that the banner includes a reject option equivalent to the accept option.

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English Machine Translation of the Decision

The decision below is a machine translation of the German original. Please refer to the German original for more details.

2. The defendant is further sentenced to pay the plaintiff €260.00

   Interest at five percentage points above the respective rate
   Base interest rate to be paid since June 8th, 2022.



The parties shall each bear the costs of the legal dispute in the 1st and 2nd instance

Half.

This and the contested judgment are provisionally enforceable.

The amount in dispute for the appeal process is up to €5,000.00

fixed.

The revision is not permitted. reasons



                                         I


The plaintiff, acting in the form of a registered association

Consumer protection association, which is included in the list of qualified entities in mind

of § 4 UKlaG is registered with the Federal Office of Justice, the defendant records the
www.wetteronline.de an advertising-financed internet portal for weather data and -

news operates, to refrain from using the following application

displayed cookie banner on your website as well as the payment of

Warning costs apply.


Since, in the plaintiff's opinion, the disputed banners of

Declarations of consent given to visitors to the defendant's website
The storage of cookies did not meet the legal requirements, warned

he sent the defendant letters dated November 29, 2021 and January 6, 2022. The defendant gave

no cease and desist declaration. Because of the pre-trial correspondence

reference is made to appendices K 1 to K 4.


The defendant has now changed the design of its cookie banners.


The plaintiff requested in the first instance



      1. the defendant to sentence it while avoiding a trial by the court for the case

      the fine to be assessed for the violation – alternatively
      Administrative detention – or administrative detention for up to six months (fine).

      in individual cases a maximum of EUR 250,000.00, a maximum of EUR 250,000.00 in total

      two years), to be carried out by their respective legal representatives;


      to stop


      in the context of business dealings with consumers in telemedia
      via forms (cookie banners) consumers to submit a

      to request a declaration of consent in order to store information on the user's device for advertising and/or market research purposes or
Access information that is already stored in the user's device

are provided that the storage or end device access is necessary for the operation of the
Telemedia is not absolutely necessary,


a. without a declaration of consent in form and function in the cookie banner
and coloring are equivalent, of equal rank and equally easy to use

to provide an easy-to-use rejection option

and or


b. a cookie banner with the words “Accept &
Close” followed by an “X” symbol on the right

To display the link in the top right corner of the banner
which the user's declaration of consent should be requested,


if this occurs, as shown below: 2. to order the defendant to pay him 260.00 euros plus interest in the amount of 5

      percentage points above the respective base interest rate since the case was brought

      pay.


The defendant has requested

      reject the complaint.



In its judgment dated May 4, 2023, the regional court ordered the defendant to pay
Warning costs amounting to 260.00 euros plus interest were imposed, but the lawsuit was dismissed

Otherwise rejected. As justification, the regional court stated that no

There is a claim for injunctive relief in the form asserted. Although he is
Claim 1) is sufficiently specific and a claim for injunctive relief

Use of the cookie banners in question is basically given,

because the former design of the banners did not meet the requirements of Section 25 Paragraph 1TTDSG. The granting of consent cannot be considered “voluntary”.

be assessed as sufficiently informed in the sense of the GDPR, since the user is informed by the
The design of the cookie banners is specifically directed towards consent.

However, the proposal for paragraph 1. a) is too broad and is contained in the wording

“without a declaration of consent in form, function and in the cookie banner
Colors that are equivalent, of equal rank and equally easy to use

“Provide a opt-out option” expressly imposes a commitment to one

specific form of banner design. However, the latter does not result from the

Regulations of the GDPR from the recitals. Rather be
Different designs are conceivable that meet the requirements of a voluntary one

consent was sufficient. Despite the “and/or” link, this leads to one

Rejection of the application for paragraphs 1 a) and b) in its entirety because of the clarification
of the plaintiff at the hearing the application should be interpreted in such a way that the inserts

a) and b) should not be in an alternative relationship, but at most

Insertion to a) should be covered in isolation from the proposed ban. The

However, the plaintiff can successfully claim warning costs in accordance with Section 13 (3) UWG
make, since the plaintiff is entitled to the asserted injunctive relief in accordance with

previous statements are fundamental and justified

The warning also does not conflict if it is too far-reaching

A cease and desist declaration is requested.


Due to the detailed status of the matter and the dispute up to the decision in the first instance

as well as the reasoning of the regional court is in accordance with Section 540 Paragraph 1 Sentence 1 No. 1 ZPO
the judgment of the regional court is referred to.



The plaintiff is appealing against this judgment. Those from the defendant

originally filed with regard to the warning costs awarded
This dependent follow-up appeal has a deadline of December 15, 2023

withdrawn.


The plaintiff initially still has a conviction in the main case

of his applications submitted in the first instance. As justification, he asserted

made that the injunction request under 1. a) was not formulated too extensively

was, but at least with regard to this - since the applications were also submitted alternatively through the link "and/or" - the application under point 1.b) would not have

may be rejected. That a cease and desist request for the design of a
Option to reject the request for a declaration of consent using the form

Reference is already a necessary prerequisite for admissibility for certainty

of cease-and-desist applications from Section 253 Paragraph 2 No. 2 ZPO. From the formulation of the
The application does not show that the defendant expressly agreed to a specific form

would be obliged to design the banner. The user of a cookie banner is

fundamentally free to design the same or the necessary ones

Consent query. However, if he decides on a certain type of design,
so the options to be selected would have to be equivalent, of equal rank and equal

be easy to use. This applies to both form and function

Coloring. In fact, the cookie banner used does not offer users a free one
and real choice and therefore violates Section 25 Paragraph 1 Sentence 2 TTDSG in conjunction with V. with Art. 4 No.

11 GDPR. The mere choice between “Accept” and “Settings” is not one

real choice in this sense and therefore inadmissible, as can also be seen from one

The opposite conclusion arises from Article 7 Paragraph 3 Sentence 4 GDPR. It would then also be legally incorrect
the interpretation of the regional court that the applications under 1. a) and b) despite the

The link with “and/or” should not have been in an alternative relationship,

In this respect, it completely misinterpreted its behavior in the oral hearing.

In the matter itself, this also emerges from the regional court's statements,
is the claim in this respect - since the user has the cross in the upper right corner

falsely suggesting that one could leave the banner there - justified

and should therefore have been awarded.


In a letter dated December 8, 2023, the plaintiff announced a new application and in

the oral hearing on December 15, 2023 then in accordance with his

Announcement requested,


      with partial modification of the contested decision of the regional court

      Cologne from May 4th, 2023, Ref.: 33 O 311/22,

      the defendant goes beyond the claim awarded at first instance

      to condemn it while avoiding a sentence imposed by the court in the event of
      Violation of the fine to be assessed – alternatively

      Administrative detention - or administrative detention for up to six months (administrative fine in individual cases not exceeding EUR 250,000.00, maximum administrative detention in total).
two years), to be carried out by their respective legal representatives;


to stop

in the context of business dealings with consumers in telemedia

via forms (cookie banners) consumers to submit a
To request a declaration of consent for advertising purposes and/or

Store market research information on the user's device or
Access information that is already stored in the user's device

are provided that the storage or end device access is necessary for the operation of the
Telemedia is not absolutely necessary,


a. without an equivalent declaration of consent in the cookie banner
Provide opt-out option


and or

b. a cookie banner with the words “Accept &

Close” followed by an “X” symbol on the right
To display the link in the top right corner of the banner

which the user's declaration of consent should be requested,

if this occurs, as shown below:.

The defendant requests

       to reject the appeal.


She defends the contested judgment insofar as it was in her favor,

repeating and elaborating on their arguments at first instance. II.



The plaintiff's appeal is admissible and has to do with the last one

Application for injunctive relief is also successful.


First of all, it is irrelevant that the defendant created the cookie banners at issue

no longer used as this poses a risk of repetition for the plaintiff
The right to injunctive relief cannot be waived. The abstract risk of repetition would have

can only be remedied here by submitting a cease-and-desist declaration that is subject to penalty

can.


The applications a) and b) submitted by the plaintiff are currently valid

made form permissible and also justified.



1. Application for a):


a)

The amendment to the application made by the plaintiff with regard to the application
a) is permitted in accordance with Section 264 No. 2 ZPO.



According to Section 264 No. 2 ZPO, it is not to be viewed as an amendment to the lawsuit if without

Change of cause of action in the main action or in relation to
Additional requirements are expanded or limited. Both are recorded

quantitative as well as qualitative changes to the lawsuit (BeckOK

ZPO/Bacher, 51st Ed. December 1, 2023, ZPO § 264 Rn. 4, 5). In this case the plaintiff has
continues to be based on the same plea, in particular the

same form of injury referred to, his application only qualitative

restricted to include those contained in his original application

Specifications for the defendants regarding the specific design of the cookie banners
no longer recorded. At least in the constellation given here

qualitative change in the lawsuit § 264 ZPO is to be viewed as a special regulation (cf.

BeckOK ZPO/Bacher, 51st Ed. December 1, 2023, ZPO § 264 Rn. 6; MüKoZPO/Becker
Eberhard, 6th edition 2020, ZPO § 264 Rn. 23; Musielak/Voit/Foerster, 20th edition 2023, ZPO § 264 Rn. 6; a.A. Zöller/Greger, ZPO, 35th edition, § 264 ZPO Rn. 4 a), the § 269

ZPO ousted in its scope of application, the defendant had to agree
not required for the amended application.



b)
The amended application is also sufficiently specific. The demand for one

The “equivalent” rejection option does not raise any concerns in this respect. The term

The equivalence is to be understood in the sense of Section 25 Paragraph 1 TTDSG. Accordingly

The rejection as well as the consent must be based on clear and
comprehensive information is provided.



c)
A new hearing of the data protection authority was required in accordance with Section 12a Sentence 1 UKlaG

it is not with regard to the amended application. The amended application refers to the

same form of infringement as the original application reference to which the

The data protection authority has already been heard and has also taken a position.


d)

The amended application is also successful on the merits.


By designing the cookie banner as described by the plaintiff

The specific form of infringement taken will not be given to the consumer at first

On the second level there is an equivalent, clear and comprehensive one
Information-based, rejection option is offered, which is why he - as stated by the

Regional court correctly executed – directed towards giving consent and from

the rejection of cookies is prevented, so that the consent given is not considered

voluntarily and sufficiently informed within the meaning of Section 25 Paragraph 1 TTDSG, Art. 4 No. 11
GDPR can be viewed. The first level contains none at all

Opt-out option for the consumer. Rather, this can be done using the button

“Settings” only takes you to the second level. Here the consumer has
then choose between the “Accept all” button and the button

"Save". As correctly stated by the regional court, this is clear

But average users don't know what specific function is behind it

hides the respective button or which button can actually be used to reject cookies. The defendant himself has in the first instance

repeatedly stated that the consumer has a real choice
must be. This is the case with the design of the cookie banners shown here

not the case right now.


2. Application for b):



The rejection of the application for b) - which the plaintiff made in the appeal instance

in an unchanged form - was wrongly done by the regional court. Also
if the plaintiff initially states this in the oral hearing

has positioned that what matters to him is the insertion to a) and therefore

If anything, this should be covered in isolation from the proposed ban, he ultimately has
submitted the application as announced and therefore did not stick to it.

By linking and/or there was a connection between the applications for a) and b).

real alternative relationship, which is why the regional court also approved the application in isolation

b) should have decided. Another interpretation is contrary to the opinion
The defendant also does not agree with the word “there” that introduces the application under b), since this

It also makes sense if this application is only made in isolation.



This sufficiently specific application is also successful on the merits. The design
the cookie banner with the linked button “Accept & Close X” in the

top right corner violates the principles of transparency and

Voluntary consent and leads to its ineffectiveness. To that extent can
Reference should again be made to the relevant statements of the regional court.

The “X” symbol is not familiar to users as a way to close a window

but, to inform the use of cookies and other technologies by the

Website operator to consent. The fact that consent is hereby declared is the
average user may not be aware of. Although right next to the “X”

Accept & Close icon. But the connection between these two functions is

misleading and non-transparent for users. It is also not possible for users to do without it
You can also see that it is “Accept & Close” and the “X” symbol

is one and the same button. Against this background, consent can

Using the “X” symbol, it is neither assessed as unambiguous or clearly confirming, nor as voluntary within the meaning of Section 25 Paragraph 1 TTDSG, Art 4 No. 11 GDPR

become.


3.

The Senate was also not kept in mind by the defendant
Complaint filed in a letter dated December 20, 2023 that the requirements of Section 128a

ZPO not consistent during the oral hearing on December 15, 2023

had been in favor of reopening them. It is true that the

Plaintiff's side - apparently due to technical problems - not throughout the entire period
oral hearing via simultaneous audio and video transmission

was, but the image transmission was temporarily interrupted, and she - after

Chairman's note - had to be restored repeatedly. It is also recognized
that in the event of technical difficulties with the video conference negotiation carried out

there may be a violation of the principle of orality (classes in:

Ory/Weth, jurisPK-ERV Volume 2, 2nd edition, § 128a (as of December 19, 2023) Rn. 30). The

However, the defendant cannot rely on this because of a possible procedural error
at least according to § 295 ZPO would be cured. The existing difficulties were

transparently established for all those involved, the plaintiff was repeatedly named

Restoration of simultaneous image transmission paused. Despite knowledge of

Given these difficulties, the defendant has no objections to the implementation of the
Oral hearing, which with regard to the plaintiff's side is therefore temporarily in Art

during a telephone conference. The technical problems were

although discussed, but not complained about by the defendant. In the negotiation for
The main thing is an objectionless admission or a waiver of compliance

the regulation within the meaning of Section 295 Paragraph 1 ZPO (see also Saarland regulations).

Saarbrücken Higher Regional Court, judgment of July 15, 2021 - 4 U 48/20 -, Rn. 53, juris).


This waiver was also effective. The parties can do so in accordance with Section 128 Paragraph 2 ZPO

To completely waive the holding of an oral hearing, a

maiore ad minus - at least when, as here, the identity of the people connected
is undoubted - a partial waiver of image transmission may also be permissible

(see Saarbrücken Higher Regional Court, judgment of July 15, 2021 - 4 U 48/20 -, para. 53,

juris; Windau, NJW 2020, 2753 Rn. 7; Klasen in: Ory/Weth, jurisPK-ERV Volume 2, 2.

Edition, Section 128a ZPO (as of December 19, 2023), paragraph 30). Ultimately, it is neither clear nor stated what procedural disadvantages the defendants face

Managing directors and legal representatives personally in the oral
were present at the hearing due to the temporary failure of the image transmission

could have arisen on the plaintiff's side.




                                         III.



The cost decision follows from Sections 92 Paragraph 1 and 97 Paragraph 2 ZPO. The costs were the
to be imposed equally on the parties. The plaintiff has, solely because of the first in the

The appellate court's amended claim under paragraph a) was completely successful,

otherwise he would be with this application (cf. also the Senate's judgment of
November 3, 2023 - 6 U 58/23 = GRUR-RS 2023, 34611 - Third country transfer Rn. 27 ff.)

inferior, which is why it is justified to bear the costs on the plaintiff's side

(see Herget in: Zöller, Code of Civil Procedure, 35th edition 2024, § 97

ZPO Rn. 11). The application originally made under point 1. a) was due to
the broad wording of the application is unfounded. The requirements formulated with this application

The defendant made unreasonable demands on the design of the cookie banners

Choice regarding possible actions to be taken to eliminate it

of the fault condition. In view of the plaintiff's adherence to the
In the application submitted, only the specific form of injury was not taken into consideration

prohibit without simultaneously issuing the requested bid. Because this would have

contradicted the plaintiff's request (cf. Senate judgment of November 3rd, 2023 - June 6th).
U 58/23, a.a.O. Rn. 32).



The decision on provisional enforceability results from Sections 708 No. 10, 711,

713 ZPO.


                                         IV.


The appeal was not permitted (Section 543 Paragraph 1 No. 1, Paragraph 2 ZPO). Neither comes

the fundamental importance of the case still requires the interests of the

Continuing legal education or ensuring uniform jurisprudence

Decision of the Federal Court of Justice.