On October 17, 2024, the Bundestag approved the Ordinance on Consent Management Services under the Telecommunications Digital Services Data Protection Act (TDDDG). The aim of the ordinance is to reduce the number of cookie banners. Why this could prove problematic in practice.
TDDDG: Legal basis of the new cookie banner regulation
The new regulation on consent management services is based on Section 26 (2) TDDDG.
Section 26 (2) TDDDG authorizes the Federal Government to regulate the following by statutory order with the consent of the Bundestag and the Bundesrat:
- the requirements for user-friendly and competition-compliant procedures that a consent management service must offer in order to be recognized,
- the procedure for recognition and
- the technical and organizational measures so that software for retrieving and displaying information from the Internet and providers of digital services can take into account the end user's settings managed via an integrated recognized consent management service with regard to consent in accordance with Section 25 (1) TDDDG.
Section 26(1) TDDDG provides that an independent body may recognize services which, inter alia, provide user-friendly and competition-compliant procedures to manage the consent of end users required under Section 25(1) TDDDG.
Integration of recognized services is voluntary
"The aim is to create user-friendly, recognized services for consent management that manage decisions made by end users regarding consent or non-consent vis-à-vis a provider of digital services and thus relieve the burden on them," the German government explains its plan. End users are to receive a "transparent tool" with which they can understand and review their decisions at any time.
The recognition procedure is to be carried out by the Federal Commissioner for Data Protection and Freedom of Information. One of the requirements for recognition is that there is "no economic self-interest in the consent of the end user and in the managed data" and that the provider is "legally and organizationally independent of companies" that could have such an interest, according to the draft regulation. For users and providers alike, the recognition is intended, among other things, to provide an incentive to strengthen trust in a legally secure procedure, according to the German government.
The sticking point: Section 18 (1) of the regulation states: "The integration of recognized consent management services by providers of digital services is voluntary." Many experts are therefore already assuming that the voluntary nature of the regulation means that it is doomed to failure. Why should website operators hand over their cookie management?
The fact that there are no blanket default settings for tracking cookies also makes the whole process not particularly attractive from a consumer perspective. The German Federation of Consumer Organizations (vzbv) also points this out.
Reading tip: Cookie consent management - secure consent for companies
Companies should rely on intelligent cookie management systems
If the Federal Council also approves the current version, the new regulation will not actually have any consequences for companies. Everything can, nothing must.
Nevertheless, companies should review their cookie management. After all, an intelligent cookie management system offers numerous advantages, especially in terms of compliance, efficiency and user-friendliness.
By using a cookie management system such as CookieProof from 2B Advice, companies can communicate transparently what data is collected and how it is used. The ability for users to change their preferences increases trust and customer loyalty as users feel safer and respected.
A cookie management system also provides insights into which cookies are enabled, how often users consent and what their preferences are. This helps companies to manage cookies efficiently and collect only relevant data, which increases data quality and relevance.
Intelligent management systems such as CookieProof from 2B Advice also do not block the entire website for interested parties. The website can also be used without making a selection. This optimizes accessibility and creates a better user experience. And that's exactly what it should be about.
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