A health insurance company must refrain from collecting personal data from underage consumers over 15 years of age in competitions without the consent of their legal guardians in order to be able to recruit them as customers. This was decided by the 4th Civil Senate of the Higher Regional Court of Hamm on 20 September 2012, thus changing the first instance decision of the Regional Court of Dortmund.
The health insurance company sued by a consumer association had offered prize draws for underage consumers at a job fair. On the participant cards, the name, address, date of birth and contact details were requested and a signature of the participants was required, which was only to be provided by the parent or guardian in the case of minors under 15 years of age. With a declaration also printed on the card, the participants agreed to the storage and use of the requested data in order to be informed and advised about the services of the health insurance fund. Pointing out, among other things, that minors as young as 15 were allowed to choose their own health insurance, the health insurance company sued considered this to be permissible advertising.
The 4th Civil Senate of the Higher Regional Court of Hamm disagreed and prohibited the health insurance company from such advertising. It cannot be assumed that minors over the age of 15 have the necessary maturity to foresee the scope of the declaration of consent for data storage and data use for advertising purposes. The increasing maturity of minors with age had to be taken into account. However, the average of the group of persons addressed, who were still inexperienced in business matters, had to be taken into account. When reading the winning card, the incentive to win something outweighed the consistent thinking about what could happen as a result of revealing the data. Moreover, when filling out a winning card at the fair, a young person makes a very short-term decision about revealing his or her personal data. This is not comparable to the situation when choosing a health insurance company. This is regularly connected to the choice of an apprenticeship or a job, where a young person is advised by his or her parents and, if necessary, the new employer and can inform himself or herself in peace about the health insurance companies to be considered.
Judgment of the 4th Civil Senate of the Higher Regional Court of Hamm of 20.09.2012, File No. I-4 U 85/12
Source: Press release of the OLG Hamm
Goldberg Attorneys at Law 2012
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
