Higher Regional Court Frankfurt: Freely Given and Specific Consent under the GDPR for Direct Marketing Purposes (Inofficial Translation)

Judgment of 27 June 2019, no. 6 U 6/19

(h/t Dr. Henrik Hanssen)

Guiding Principles

If participating in a sweepstake/prize game has been made subject to consent to receiving future email advertising, such consent may be valid if the consumer has consented to the advertising by no more than eight specifically designated companies and the business area of the advertising organisation has been described sufficiently clearly (in the present case: "Electricity & Gas").

It is irrelevant for the validity of advertising consent of a company whether the business areas of other designated companies have been described sufficiently clearly.

Reasoning

I.

Pursuant to Sections 540(2), 313a of the German Code of Civil Procedure (Zivilprozessordnung, "ZPO"), the facts of the case are not presented.

II.

The Defendant's appeal is admissible, but unfounded on the merits. The Defendant has acted unfairly in respect of all five procedural requests, entitling the Claimant to injunctive relief under Section 8(1), (3) No. 1 of the German Act Against Unfair Competition (Gesetz gegen den unlauteren Wettbewerb, "UWG").

1.) The injunctive relief claims are brought against the correct Defendant. Pursuant to Sec. 8(2) UWG, the Defendant is also responsible for the actions of Witness A, since he acted as an agent.

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2.) Request 1: Call without consent

The injunction claim follows from Sections 8(1), (III) No. 1; 7 (1), 2nd sent., (2) UWG, since the Defendant could not substantiate that it had received appropriate consent for the advertising call to customer B on 24 August 2018.

a) The Defendant bears the burden of producing evidence for obtaining valid consent pursuant to Section 7(2) UWG; evidence of consent requires its complete documentation.

Where consent has been given by electronic means, it must be stored and printable at any time (Federal Court of Justice (Bundesgerichtshof, "BGH") WRP 2011, 1153, marginal no. 31 - Double opt-in procedure). There is no reason to assume a secondary burden of proof or other facilitation of evidence for the defendant (BGH NJW-RR 2014, 423).

b) The declaration of consent submitted in Annex AG 1 would be effective.

(1) The consent to telephone advertising shall be interpreted in accordance with the Directive and in accordance with European data protection law. This is based on the GDPR which entered into force on 25 May 2018, since the alleged declaration of consent was supposed to be issued on 4 January 2018 (and thus before the GDPR entered into force), whereas the call was made on 24 April 2018 [NB: This appears to be a clerical error; previously the court found that the call took place on 24 August 2018, see supra.] (and thus after the GDPR entered into force). The date of the advertising call has to be taken into account; the advertising call is only permitted if the conditions are fulfilled at the time of the call, i.e. consent meets the requirements of the GDPR.

(2) Consent has also been given freely. According to the definition in Art. 4(11) GDPR, consent of the data subject means "any freely given, specific, informed and unambiguous indication of the data subject's wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her".

"Freely" is synonymous with "without obligation" in the meaning of Art. 2 lit. h of Directive 95/46/EC (English: "freely"). The data subject must therefore have a genuine or free choice and thus be in a position to refuse or withdraw consent without detriment (recital 42 GDPR). In particular, no pressure shall be exerted on the data subject. However, merely attracting persons by promising them a benefit, such as—in this case—participating in a competition, is not sufficient for such an assumption (K?hler/Bornkamm/Feddersen/K?hler, 37th ed. 2019, UWG § 7 Rn. 149f). According to the jurisprudence of the Senate (cf. GRUR-RR 2016, 421 - übersichtbare Partnerliste, juris-Rn. 18; GRUR-RR 2016, 252 - Partnerliste, juris-Rn. 24), the fact that consent is linked to participating in a competition does not preclude voluntariness. Any consumer can and must decide for himself whether participation is "worth" the disclosure of her/his data.

(3) Consent has also been given "specifically"; this is equivalent to "specific" within the meaning of Art. 2 lit. h of Directive 95/46/EC (English: "specific"). Consent forms must clearly demonstrate which individual advertising measures by which company are involved, i.e. to which goods or services by which company they refer (BGH GRUR 2013, 531 marginal no. 24 - Consent to advertising calls II; BGH WRP 2017, 700 marginal no. 25). Irrespective of any validity of the General Terms and Conditions [NB: Sections 305 et seqq. of the German Civil Code], consent is invalid if it does not clearly indicate which advertising measures which company will be covered by this statement (K?hler/Bornkamm/Feddersen/K?hler, 37th ed. 2019, UWG § 7 no. 149g).

However, it may lack requisite transparency if the number of companies obtaining advertising consent is so significant that the consumer will not reasonably deal with all these companies and their business areas (cf. Senate, Partnerliste, loc. cit., marginal no. 26: 59 companies). However, in view of the eight companies listed in the consent form, this is not yet the case.

As regards the reference to products, generic descriptions preformulated by the advertiser, such as the fact that consent extends to "financial services of all kinds", are not satisfactory (K?hler/Bornkamm/Feddersen/K?hler, 37th ed. 2019, UWG § 7 no. 186). In this respect, however, the information provided in the consent form relating to the Defendants's company ("Electricity & Gas") should not be criticised. On the other hand, there are doubts as to whether consent for company "X Ltd." is effective, since the information on this company ("Marketing and Advertising") does not reveal for which type of products the advertising consent was given. However, this does not affect the validity of consent given in a sufficiently clear manner in favor of the Defendant. In this respect, the absence of recognizability of a company does not result in the entire consent being "infected" and therefore invalidated also with regard to the other companies.

c) However, like the Regional Court, the Senate is not sufficiently convinced on the basis of the prima facie evidence that Customer B's consent has actually been obtained.

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[NB: I do not assume any responsibility for the accuracy of the translation of the abovementioned Judgment.]