Over the last years, a number of German Courts had to decide whether the operator of a website that contains a contact form for the website’s visitors shall be obliged to provide visitors a privacy policy that informs the visitor about type, scope and purposes of collection and use of personal data.

The question whether a breach of the underlying statutory information duties will trigger a competitor’s right to file an injunction against the website operator is highly disputed among German Courts.

Judgment of Higher Regional Court Cologne of 11 March 2016

Under Section 13(1) German Telemedia Act (Telemediengesetz – TMG), a service provider is obliged to inform the user at the beginning of the use of the service about type, scope and purpose of collection and use of personal data in a generally understandable manner, if such information has not already been given.

In a recent judgment dated 11 March 2016 (case no. 6 U 121/15), the Higher Regional Court Cologne (Oberlandesgericht Köln) held that Section 13 TMG shall be regarded a so-called “market conduct rule” in the meaning of Section 3a (formerly Section 4 no. 11) German Act against Unfair Competition (Gesetz gegen den unlauteren Wettbewerb – UWG). Therefore, a breach of Section 13 TMG would qualify as unfair competition. Accordingly, competitors shall be entitled to file injunctions vs. the website operator who fails to provide a sufficient privacy policy for visitors of its website.

The Higher Regional Court Cologne upheld the first instance judgment of the District Court Cologne (Landgericht Köln), which had issued an injunction against a tax consulting company, on request of a competing tax advisor.

In its judgment of 11 March 2016, the Higher Regional Court Cologne now expressly refers to Article 10 of Directive 95/46/EC (“Data Protection Directive”). The Court states that Section 13 TMG could be seen as the German implementation of Art. 10 Data Protection Directive, whereas the purpose of Art. 10 Data Protection Directive was not only to guarantee “data-related fundamental rights” (recital 1), but also to establish a uniform level of data protection (recitals 6 and 7). A different level of protection across Member States could constitute an obstacle to the pursuit of a number of economic activities at Community level and distort competition (recital 7). Consequently, the Higher Regional Court Cologne concluded that the rationale of the Data Protection Directive shall not be limited to mere protection of the individual data subject, but also comprises collective interests of free competition.

In the view of the Higher Regional Court Cologne, the fact that a website visitor would be aware of type, scope and purpose of collection and use of personal data, which results directly from the contact form itself, shall be irrelevant. Rather, the Higher Regional Court Cologne points out that Section 13 TMG requires information in a manner generally understandable. Accordingly, any own interpretation of type, scope and purpose by the relevant data subject cannot replace the information obligation of the website operator. In other words: By definition, providing information requires a specific action of the informing party vis-à-vis the recipient of the relevant information. In addition, the Higher Regional Court criticised that the contact form at hand did not provide for a specific form of consent accessible for the data subject, and that no information on the data subject’s right to revoke the consent was provided.

Further, the Higher Regional Court of Cologne concluded that the lack of the required information would have a negative impact on the interests of consumers and competitors in the meaning of Section 3a German Act against Unfair Competition (Gesetz gegen den unlauteren Wettbewerb – UWG). In the Court’s view, consumers could decide to abstain from filling out the contact form, if they obtained sufficient information about storage and use of their personal data beforehand.

In a judgment earlier this year (judgment of 4 February 2016, case no. 52 O 394/15), the District Court of Berlin (Landgericht Berlin) took a different view. In particular, Section 13 TMG, as well as the underlying legislative materials, shall only focus on the legitimate interest of the relevant data subject to receive sufficient information about collection, processing and use of the personal data. Consequently, Section 13 TMG shall not aim on protection of the website operator’s competitors. Contrary to the Higher Regional Court Cologne, the District Court Berlin held therefore that a breach of Section 13 TMG shall not have any negative impact on competitors in the meaning of Section 3a (formerly Section 4 no. 11) UWG.

Impact on Website Operators

The latest judgment of the Higher Regional Court Hamburg increases the risk of adverse injunctions by competitors that are based on insufficient privacy policies on websites.

Further, the judgment is accompanied by the latest amendments on German consumer protection laws: Most recently, registered consumer associations have been granted the right to sue companies for violations of data protections laws (see our previous blog). Companies are called on to thoroughly monitor their privacy policies in order to avoid any future disputes.