Cookies: ECJ Confirms Illegality Of Pre-Ticked Boxes

The European Court of Justice ('ECJ') has given its preliminary ruling following a request from the German Federal Court of Justice during a case between the Federation of Consumer Organisations ('the Federation') and Planet49 GMBH ('Planet49'), an online gaming company.

The issue concerned the consent of participants in a promotional lottery being organized by Planet49, to:

• i)    have their personal data transferred to the Planet49's partners and sponsors;
• ii)   the storage of their information and;
• iii)  the access of information stored on the users' terminal equipment (be it laptop, desktop, mobile device etc.).

The facts of the case were as follows. In order to participate in the lottery, users were faced with a set of two checkboxes. The first one, without a preselected tick, was for the users to provide consent to receive promotional material from around 60 different companies. The second checkbox, which had a preselected tick, was for the users