BUNDESVERBAND DER VERBRAUCHERZENTRALEN UND VERBRAUCHERVERBANDE —BERBRAUCHERZENTRALE BUNDESVERBAND V. PLANET49 GmbH (“PLANET49”)

Consent is “not validly constituted if the storage of information, or access to information already stored in an website user’s terminal equipment, is permitted by way of a checkbox pre-ticked by the service provider which the user must deselect to refuse his or her consent.” The indication of the data subject’s wishes must, inter alia, be ‘specific’ in the sense that “it must relate specifically to the processing of the data in question and cannot be inferred from an indication of the data subject’s wishes for other purposes.” (¶57–58)

As regards the foregoing, the consent referred to in Article 2(f) and Article 5(3) of Directive 2002/58, read in conjunction with Article 2(h) of Directive 95/46, is therefore not validly constituted if the storage of information, or access to information already stored in an website user’s terminal equipment, is permitted by way of a checkbox pre-ticked by the service provider which the user must deselect to refuse his or her consent.

It should be added that the indication of the data subject’s wishes referred to in Article 2(h) of Directive 95/46 must, inter alia, be ‘specific’ in the sense that it must relate specifically to the processing of the data in question and cannot be inferred from an indication of the data subject’s wishes for other purposes.