Top 5 errors with banner consent (so-called cookie banners) on websites

from
Dr. jur. Dirk Lindloff
Lawyer
Specialist lawyer for intellectual property law
Specialist lawyer for information technology law

Give me a call: 0261 - 404 99 45
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You constantly come across banners asking you to give your consent when surfing the internet. You can hardly access a website without having to give one or sometimes dozens of consents. In most cases, the corresponding banners are not designed in accordance with the consent requirements of the General Data Protection Regulation (GDPR).

The state data protection authorities have been taking action against this for some time. They have coordinated their approach and are currently focusing their official measures on the media company sector in particular. However, other companies could be affected at any time.

In a first interim report, the State Commissioner for Data Protection and Freedom of Information for Rhineland-Palatinate listed the top five errors that prevent effective consent(source):

Wrong order: Third-party services requiring consent are often integrated and cookies set as soon as the web pages are opened – i.e. before the consent request.
Missing information: The information provided at the first level of the consent banner about user tracking is insufficient or incorrect.
Insufficient scope of consent: Even if the user declines everything on the first level of the consent banner, numerous cookies and third-party services that require consent remain active.
No easy refusal: While all consent banners have a button on the first level that can be used to give consent to all cookies and third-party services, there is often no equally simple way at this level to refuse theor to close the banner without making a decision.
Manipulation of users: The design of the consent banners exhibits numerous forms of nudging. This means that users are subliminally pushed to give their consent, for example, by making the consent button much more prominent than the reject button by highlighting it in color or by unnecessarily complicating the refusal to consent.

Unfortunately, web agencies are often not informed about these issues. However, it is possible to design even more extensive websites without cookies, third-party content and consent, as our website shows. At most, the agency incurs additional work for the first customer, for example, if they have to think more carefully about how to integrate a map without using Google Maps.

The examination of such banners should therefore also take into account such technical aspects as, for example, the issue of "wrong order". Apart from this point, with a practiced eye for data protection law, you can often quickly see whether the banners will lead to effective consent.

The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.