Unfair commercial practice as a result of a lack of a privacy policy

In its ruling of March 11, 2016 (Case 6 U 121/15), Cologne Higher Regional Court considered the failure to provide information on the nature, scope, and purpose of the collection and use of personal data in connection with a contact form issued by a tax adviser to be an anticompetitive violation. It thus confirmed a preliminary injunction imposed by the lower court. In its decision, the court presumed that Section 13 German Telemedia Act is a standard that regulates market conduct and can therefore be grounds for an unfair commercial practice. EU law does not contradict this either, because in accordance with the Data Protection Directive, the provision also protects activities by competitors and the interests of consumers. The case at issue was not subject to restrictive interpretation because no consent was granted as part of entering the contact information, which was accessible at all times. Additionally, there was no notification given that the consent could be revoked at any time. The court further held that the lack of notification was of a kind that could noticeably impair the interests of consumers because the possibility could not be excluded that consumers might not have used the form if proper notification had been provided.

Practical tip:

With this decision, Cologne Higher Regional Court, like Hamburg Higher Regional Court (June 27, 2013, Case 3 U 26/12), and contrary to its previous practice, also Berlin Higher Regional Court (February 12, 2015, Case 16 O 504/14) further increases the risk of warnings in the area of privacy policies. The decision shows that companies that record personal data in any way whatsoever must ensure that data protection notification is provided properly in order to avoid becoming a target for complaints under competition law.