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Cookie notice: warnings due to cookie banners?

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Most website operators have already heard of the cookie policy. How to correctly instruct users about cookies has not yet been clarified. Therefore, as a precaution, many website operators include cookie notice banners on their websites. But be careful: There are a few things to consider when implementing.

What is the cookie discussion about?

The starting point is as follows: Cookies are small text files that can be stored for a session or permanently on the user's hard drive. Cookies can then be used to recognize the users of the website. For example, it is possible to greet users with their username or to save goods in the shopping cart.

The European cookie directive is intended to regulate the use and storage of cookies in order to protect user data. According to the guideline, cookies should only be allowed to be set and stored if the user has been informed about them and has given their consent.

However, it is still unclear what the user's consent must look like. Some assume that the user has to actively give his consent (opt-in). Others believe that it is sufficient if the user is instructed and can object to the use of cookies (opt-out).
As a precaution, many website operators have decided to set up a banner on the website to inform the user about the use of cookies. Users can then also give their consent via the banner.

Banner must not cover up the mandatory information

If site operators include a banner, they must ensure that the banner does not cover any mandatory information on the site. Many website operators include the banners at the bottom of the website. Most of the time, the imprint and the data protection declaration are also integrated there.
However, according to Section 5 of the Telemedia Act (TMG), the imprint must always be directly accessible and permanently available on the website. However, if the cookie banner is above the imprint, these legal conditions are not met.

The same applies to the data protection regulations. According to ยง 13 Paragraph 1 Clause 1 TMG, the user must be informed about the type, scope and purpose of the data collection and use on the website at the beginning of the use. So there must also be a data protection declaration on the website. The data protection declaration must also be accessible with one click. However, if the cookie banner hides the data protection declaration, the user will not be properly instructed here either.

Since the beginning of the year, website operators have also had to provide information via the online dispute settlement platform (OS platform). This note is also often included either in the page footer or in the imprint. It must not be covered by the cookie banner, just like the imprint and data protection declaration.

Practical tips:

1. If website operators want to use a cookie banner, they must be careful not to cover up any mandatory information on the website. If the legal obligations are violated, there is a risk of expensive warnings.
2. Site operators should embed the banner in a free space. Some website operators provide the mandatory information both at the top of the website and in the footer. In this way, the information is always available despite the banner.

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