D: Cologne Higher Regional Court on advertisements as a means to win back former customers

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

Many companies are often highly interested in winning back former customers who have switched to the competition. In August 2009, such a case was brought before the Higher Regional Court in Cologne.

 

An electricity supplier had written to former customers who had switched to a competitor. The name of the new provider was expressly mentioned in the letters, which aimed at convincing the customers to switch back to their former provider. The competitors took legal action against this approach and were largely considered to be in the right.

 

The Higher Regional Court in Cologne (decision dated 08/14/2009, file reference no. 6 U 70/09) ruled that this approach by the electricity supplier was anti-competitive according to articles 3, 4 no. 11 8 para. 1 UWG (German Act Against Unfair Practices) in conjunction with articles 4, 29 BDSG (Federal Data Protection Act). According to the court, the handling of data was in violation of article 4 BDSG, as it was not covered by any permissive rule. As such, only art. 28 BDSG would come into consideration in the case at hand. Information that a customer is now under contract with a competitor is not essential in order to fulfill the advertising purpose at issue here. That information only serves the purpose of enhancing the effect of the advertisement. However, this is not a legitimate interest according to the law. Only names and addresses are required, along with the data "former customer", provided an interest in winning back customers is recognized.

 

The court also pointed out that the electricity supplier failed to inform consumers about the right to objection pursuant to art. 28 para. 4 p. 2 BDSG. Earlier notification, e.g. during data collection, was insufficient as it could have occurred a long time ago, meaning the person concerned might not remember the information given in the past and data might have originally been collected for completely different purposes.

 

Once again, the basic principle of data minimization and necessity is of significance in this case. On the one hand, companies are thus advised to carefully verify which data is essential in advertising letters to customers. A sheer increase in the effect of the advertisement is not sufficient reason. In addition, it is recommended to always refer to the right to objection granted by the data protection laws.

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