D: Extent of the Examination by the Supervisory Authorities for Consents

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

If the supervisory authorities for the protection of data privacy are contacted and they examine a consent declaration, this does not always imply complete legal certainty with regard to the admissibility of the declaration.

 

One company in the advertising industry was forced to experience this in 2008. One clause of a prize game that was to function as a consent for the company to contact the participants by phone was presented to the data protection official in Hamburg. After some changes, this official had regarded the clause as permissible. In a temporary restraining order, the Regional Court of Hamburg disagreed with this decision.

 

With the judgment of 2-14-2008 (file no. 315 0 869/07), the temporary restraining order against the company was confirmed and the consent for the telephone calls was declared to be ineffective. In this connection, the court based its decision on the impermissibility of the clause for competitive reasons, and not on the protection of data privacy law.

 

Moreover, a consent permissible under § 4a of the BDSG may be anti-competitive, based on an infringement of the UWG. The protection of data privacy standard does not have precedence over §7, paragraph 2, no. 2 of the UWG. Instead, the two regulations have different areas of application. § 4a of the BDSG imposes requirements on the content of consents for obtaining, processing and utilizing data, whereas §7, paragraph 2, no. 2 of the UWG protects the consumer against unreasonable nuisance.

 

In relation to the extent of the examination of the supervisory authorities, this means for companies that a consent clause that is regarded as permissible by one of the supervisory authorities need not necessarily be in conformity with the law in all respects. The supervisory authorities examine whether a clause is permissible only from the point of view of the protection of data privacy, but will not make a binding decision concerning the legal requirements imposed by other areas of the law on the clause. Even though it is sensible to coordinate a consent with the supervisory authorities, the clause should nevertheless be examined completely by specialized attorneys, in order to avoid later defeats in court proceedings.

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