Nudging is one of the so-called dark patterns (What are dark patterns and why is it important to be aware of them?). Nudging means something along the lines of "encouraging the user to behave in a predictable way", i.e. "tricking" them into doing something without thinking about it.
For example, cookie banners can be designed in such a way that the user is tempted to agree to the use of cookies and other tracking tools which require consent. For example, the button for consent could be in a highlighted colour, it could also be larger than other buttons or users must first "find their way" through a maze of clicks to be able to refuse.
Processes like these, seeking to encourage users to agree to something he they do not actually want, are critical. In principle, users must be free to decide whether they agree to the use of cookies.
In a recent, not yet final and unappealable decision, the Rostock Regional Court in Germany ruled that "hiding" further information and deselection options behind several links was not lawful. When users need to click on a button in the cookie banner to display further details about the cookies used and will only then be able to deselect individual cookies, this is a cumbersome and time-consuming matter. It does not enable users to choose freely but this would be necessary for consent. Furthermore, the Rostock Regional Court ruled that the prominently placed, green highlighted button "Allow cookies" was qualified as nudging. It would be suggested to the user that s/he had to consent in order to access the website. Moreover, the "Further details" and "Strictly necessary cookies" buttons were designed in such a way that users would be under the impression that these could not be selected at all. The consent thus obtained would be unlawful.
It is a general principle of data protection law and other regulations that consent must be given freely and without coercion in order for it to stand and be lawful. Due to the fact that new rulings are continuously being handed down, this principle is taking more and more concrete shape and becoming more and more stringent as it is applied to entrepreneurial practice. Special caution is therefore required for online presence and advertising measures - we will be happy to check your cookie banners and support you with in this regard!
Link to judgement of 15.09.2020 – 3 O 762/19 (LG Rostock_15.09.2020.pdf (vzbv.de))