Cookies under Austrian data protection law

The Austrian legislator has implemented the Cookie Directive (Directive 2009/136/EC) in § 96 (3) TKG.

According to these provisions, consent is always required for cookies unless they are strictly necessary for the provision of the services offered on the website (e.g. technically necessary cookies).

The explanatory provisions of the TKG stipulate that consent in accordance with § 96 TKG is also required for browser settings that allow basic cookies.

As this view does not coincide with the “Cookie Directive”, it remains to be seen what requirements the courts will have for consent.

Even after the ruling of the European Court of Justice (1 October 2019, Ref.: C 673/17), the DSB (Datenschutzbehörde) has not yet issued a statement on the consent requirements for cookies.

Regardless of the question of consent, the website operator must inform the user of the purposes, legal basis, storage period and type of personal data prior to processing in accordance with Art. 13 GDPR and § 96 (3) TKG.

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