Implied consent / Consent through browser setting is possible if the user received the appropriate information in advance.

The Article 5(3) from the amended TKG in 2011 obliges online service providers to obtain website visitors’ consent to the storing of information, or the gaining of access to information already stored, in his or her terminal equipment, which includes serving cookies. However, the KG does not clarify if the use of browser cookies can be qualified as consent for the use of cookies or not.

The TKG also obliges online service providers to inform the user on the types of data processed, the legal basis for and the purpose of processing the data, and the duration of storage. This information can be provided in General Terms and Conditions or ePrivacy Policy. In practice more and more companies have turned to proactively obtaining users’ consent, e.g. by implementing “Cookie banners” on their websites.

DMVÖ is engaged in drafting an Austrian Standard on Digital Marketing.

The EDPB endorsed all guidelines form the Article 29 Working Party, including the guideline on obtaining consent for the use of cookies. Consent should be explicit opt-in consent according to this guidance.

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