D: An opt-in consent must also be precisely formulated according to general law and must not unilaterally discriminate against the party concerned.

Category: Nachrichten, Urteile
By: K. Schiefer - 2B Advice GmbH - the privacy benchmark

As stated by the Higher Regional Court of Cologne in its judgment of 04.29.2009 (ref. no. 6 U 218/08), an opt-in consent may also be inadmissible. According to the Court, preformulated consent clauses forming part of a set of agreements must be regarded as General Terms and Conditions of Business (GTCBs). In the present case, this related to a consent in the context of a sweepstakes.

 

Even the form of the clause as an opt-in consent (i.e. willful marking of the checkbox by the party concerned) did not change anything with respect to this classification as GTCBs. The party concerned has no freedom with respect to the design of the clause's content and is unable to select any alternatives ("yes"/"no") presented as equivalents. The customers must also not be given a suggestive hint that they should select one of the alternatives. Owing to this classification as GTCBs, the clause must be examined pursuant to §§ 305ff of the German Civil Code.

 

Inappropriate discrimination against the party concerned pursuant to § 307 of the Civil Code may also result from the scope of the subject matter of the declaration of consent. In particular, the consent must be transparent. The need to protect the party concerned also does not cease to exist due to the fact that he could renounce his participation in the sweepstakes or revoke the consent at any time. The revocation would inadmissibly shift the initiative for the reinstatement of the undisturbed privacy to the party concerned. Finally, it must also be clearly explained by way of example which types of advertising for which products the party concerned was consenting to.

 

This judgment results in additional requirements for declarations of consent that companies should observe. The declaration of consent must, pursuant to the law of GTCBs, contain "yes/no" alternatives and make it clearly discernible to the party concerned what subsequent processing will occur and for what purposes. The Court has explicitly declared that formulations such as "interesting offers" are not clearly formulated. More precise details are therefore necessary here and should be implemented to prevent the legal invalidity of the consent.

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