D: Form-based consent in advertising by mail - option of striking is sufficient

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

With a decision of 11 November 2009, the Federal High Court of Justice (Bundesgerichtshof, “BGH”) has added an additional stone to structure of consent under data protection laws.

 

The defendant operates a customer retention and discount system. The registration form contains a declaration of consent, printed in bold and placed with the border strip in the center of the page. It signifies that the participant agrees with the use of his or her personal data that has been collected through the system “for market research and written consulting and information purposes (advertising) through products and services of the respective partner companies.” It solely concerns advertising by mail. If the participant does not want this, he or she is to strike the clause. As plaintiff, the Federation of German Consumer Organisations sued the defendant for, among other things, ceasing and desisting from the use of this clause.

 

With a judgment of 11 Nov. 2009 (Az. VIII ZR 12/08), the BGH has declared this clause to be permissible. The German Data Protection Act (Bundesdatenschutzgesetz - “BDSG”) is the exclusive criteria test for the question of whether, through such a consent, provisions were agreed that deviate from or supplement legal provisions within the meaning of § 307, para. 3, sentence 1 of the BGB.

 

The fact that there is no small box for logging off is inconsequential, since it is not mandatory. Rather, another option is available. According to this judgment, the option of striking is sufficient. The clause is clearly emphasized, even in accordance with § 4a, para. 1 of the BDSG.

 

Moreover, no changes arose for this through the revised version of the BDSG as of 1 September 2009. In accordance with § 28, para. 3a, s. 2 of the BDSG, the consent necessary under § 28, para. 3. s. 1 of the BDSG is to be emphasized in the printing. In contrast, according to the reasoning of the law, the other requirements are to correspond to the guidelines arising from the “Payback” judgment of the BGH (judgment of 16 July 2008, Az. VIII ZR 348/06). Accordingly, an “opt out” provision for advertising by mail is permissible. In contrast, an “opt-in” is necessary only for advertising by e-mail or SMS.

 

Through this judgment, the sophistication of questions of consent has been heightened. As such, for the question of the presence of consent, companies should carefully examine the type of shipment to which the participants have consented and how the contract was formed. Ideally, a company will keep all modes of shipment available to it, by directly providing contracts with an “opt-in.” The risk that consumers have not provided their consent is clearly greater than in “opt-out” cases.

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