Recent News from Intellectual Property and Competition Law

Higher Regional Court of Hamburg: Faulty data privacy statements may constitute a breach of Competition Law

According to the Higher Regional Court of Hamburg (judgement of 27 June 2013, court docket 3 U 26/12), Sec. 13 (1) of the German Telemedia Act (TMG) is a code of market conduct as defined in Sec. 14, No. 11, German Law Against Unfair Competition (UWG). Anyone collecting personal data as part of his/her service without providing the required information acts in breach of Competition Law and may be sued to cease and desist.

The decision was based on the following facts:

Both applicant and defendant are competitors in the same field, distributing, among other things, blood sugar measuring systems. Defendant advertised on a website, inviting diabetics to register so as to receive a measuring device for test purposes. The website did not contain any information on the collection and use of the personal data required for registration.

The Higher Regional Court held that Sec. 13, TMG, implements Article 10 of the Data Protection Directive 95/46/EC which, in turn has the purpose of protecting the freedom of competitors by creating uniform competitive conditions. Therefore, Sec. 13, TMG, has the objective of establishing rules of conduct in the interest of all market participants and, consequently, falls under Sec. 4, No. 11, UWG. The Higher Regional Court further stated that the obligation to provide information also serves the interest of consumers and has a bearing on their freedom to make decisions and act accordingly.

This decision is a conscious counterpoint to an earlier decision of the HIgher Regional Court of Berlin (court docket: 5 W 88/11 = GRUR-RR 2012, 19 - "Like-Button") which denied the presence of a code of market conduct and found Sec. 13 to merely affect extra-individual interests of free competition.

Practical recommendation

Anyone who has relied on the decision of the Higher Regional Court of Berlin so far now needs to fear that a cease-and-desist order may be successfully granted against him by the Higher Regional Court of Hamburg and is therefore well advised to carefully check his data privacy statements.

Please contact the lawyers of the area of Intellectual Property / Competition Law for further information.

Print page