Guide · GDPR / TDDDG

Abmahnung over a cookie banner: what actually applies

For most websites that use analytics or marketing tools, a cookie consent banner is now mandatory. But not every demand over a supposedly "wrong" banner, for instance in a German Abmahnung (a formal cease-and-desist letter), is automatically justified.

When a cookie banner is actually required

Under Section 25 TDDDG (the German Telecommunications Digital Services Data Protection Act, known as the TTDSG until May 2024) and the GDPR, you need the visitor's consent before setting cookies or similar technologies that are not technically necessary, for example for audience measurement, ad tracking or embedded third-party content. Strictly necessary cookies (e.g. shopping cart, login session) do not require consent.

Common points of dispute in these letters

Important: a technical defect that genuinely exists does not automatically give rise to a claim for a flat-rate payment. For a genuine claim for damages under Art. 82 GDPR, a concrete, noticeable harm usually has to be shown; according to several court decisions, mere "discomfort" is not automatically enough.

How to respond to such a letter

1. Actually check your own website

Open your site in a private/incognito window and use the developer tools to see which cookies are set before anyone clicks the banner. Often you'll find that the defect exists but is easy to fix.

2. Look for patterns and mass mailings

Cookie-banner Abmahnungen are no different: identically worded mass letters with flat-rate demands are a strong indication of abuse of rights under Section 8c UWG (German Act Against Unfair Competition) or Section 242 BGB (German Civil Code).

3. Fix the defect, whatever the outcome

Legally compliant consent management makes sense anyway, both legally and for your visitors' trust.

4. Don't sign a cease-and-desist declaration without having it checked

As with any Abmahnung: signing a cease-and-desist declaration (Unterlassungserklärung) in a hurry can end up costing more than the original problem.

Related topic

Cookie-banner demands often come up in the same context as Google Fonts Abmahnungen; both are frequently based on automated website scans. The basic approach is the same: stay calm, check the facts, don't sign anything in a hurry.

This article does not replace individual legal advice.