The plaintiff is the Federation of German Consumer Organizations and Consumer Associations. The defendant operates and manages the “HappyDigits” customer loyalty and discount program. The plaintiff seeks an injunction against the defendant for the use of specific clauses in its registration forms. In the appellate proceedings, the VIII Civil Senate of the Federal Court of Justice, which is responsible for, among other things, sales law, was tasked with determining the validity of two clauses.
The first clause, positioned centrally on the form and additionally bordered, the use of which was prohibited by the appellate court, states:
“Consent to Consultation, Information (Advertising), and Marketing
I consent to my personal data collected by HappyDigits (name, address, date of birth) and my program data (number of digits collected and their utilization; type of goods and services purchased; voluntary disclosures) being stored, processed, and used by D GmbH [...] as the operator of the HappyDigits program and its partner companies for market research and written advisory and informational purposes (advertising) concerning the products and services of the respective partner companies. [...] If you do not agree, please strike out the clause [...]”
The Federal Court of Justice has ruled that the clause is valid. It exclusively pertains to consent for the storage, processing, and use of data for postal advertising and market research purposes. As determined by the Federal Court of Justice subsequent to the appellate judgment (Judgment of July 16, 2008 – VIII ZR 348/06 – “Payback”), the provisions of the Federal Data Protection Act (BDSG) serve as the sole benchmark for assessing whether such consent establishes terms that deviate from or supplement legal provisions within the meaning of § 307 (3) sentence 1 of the German Civil Code (BGB).
From a data protection perspective, the clause is unobjectionable. Accordingly, consent to the storage, processing, and use of data can be given in writing alongside other declarations, provided it is specifically highlighted, as is the case here. While the clause – unlike the clause that was the subject of the “Payback” decision of July 16, 2008 – does not provide for an additional checkbox for opting out, it does indicate the possibility of striking out the clause in bold print. However, the option to opt out by checking a box is not mandatory if the clause offers an alternative opt-out mechanism and satisfies the highlighting requirement of § 4a para. 1 BDSG. This is the case here. Clause 1 is positioned in the middle of the single-page form and is the only paragraph on the page with an additional border, thereby drawing attention to itself. The bold heading, by virtue of the word “Einwilligung” (consent) used, directly indicates that it contains a legally relevant agreement from the consumer regarding advertising and marketing measures, which – as is known to an average informed consumer – typically involve the storage and use of data.
Nothing has changed in this regard with the amendment to the Federal Data Protection Act (BDSG), effective September 1, 2009. According to § 28 para. 3 sentence 1 of the new version of the BDSG, the processing or use of personal data for address trading or advertising purposes is permissible, provided the data subject has consented. If consent is to be given in writing alongside other declarations, it must be particularly highlighted in a clear typographical design, as per § 28 para. 3a sentence 2 of the new version of the BDSG. According to the legislative reasoning, the requirements contained in the regulation are intended to correspond to those stipulated by the Federal Court of Justice in its decision of July 16, 2008, regarding the highlighting of the declaration of consent. Thus, even under the new version of the Federal Data Protection Act, an “opt-out” provision for granting consent to the processing and use of personal data for postal advertising purposes is permissible. Furthermore, consent to the use of such data for advertising via electronic mail (SMS, e-mail), which can only be effectively given through a separately submitted declaration (“opt-in”) according to § 7 para. 2 no. 3 UWG, is – unlike in the “Payback” case – not the subject of the clause used by the defendant.
The second clause, placed before the signature line, which the appellate court did not object to, states:
“Participation in HappyDigits is based on the General Terms and Conditions of Participation, which you receive with your card and which you then accept with your first activity, e.g., collecting points.”
The Federal Court of Justice has ruled that this clause is invalid (§ 307 para. 2 no. 1 in conjunction with § 305 para. 2, § 308 no. 5 BGB). It aims to incorporate the General Terms and Conditions of Participation used by the defendant into the contracts to be concluded, without fulfilling the necessary prerequisites (§ 305 para. 2 BGB). A prerequisite for effective incorporation is, among other things, that the user provides the other contracting party with a reasonable opportunity to become aware of the content of the General Terms and Conditions at the time of contract conclusion (§ 305 para. 2 no. 2 BGB). However, the clause assumes that the General Terms and Conditions of Participation are not available to participants when submitting the application for participation, but are only sent later with the card. These terms are then to be subsequently incorporated into the contract, which was thus concluded without the inclusion of the General Terms and Conditions of Participation, by deeming the participants' consent to the contractual amendment contained therein to be given through the first use of the card, in violation of § 308 no. 5 BGB. This constitutes an unreasonable disadvantage for consumers.
Legal Regulations:
§ 4a para. 1 sentence 4 BDSG states: “If consent is to be given in writing together with other declarations, it must be particularly highlighted”.
§ 28 para. 3 sentence 1 BDSG nF states: “The processing or use of personal data for the purposes of address trading or advertising is permissible insofar as the data subject has consented (…)”.
§ 28 para. 3a sentence 2 BDSG nF states: “If consent is to be given in writing together with other declarations, it must be particularly highlighted in a clear typographical design”.
§ 7 para. 2 no. 3 UWG states: “An unreasonable nuisance is always to be assumed in the case of advertising using an automatic calling machine, a fax machine, or electronic mail, without prior express consent from the addressee, (…).”
Judgment of the BGH of november 11, 2009 – VIII ZR 12/08
Lower Courts:
Regional Court Cologne – Judgment of May 9, 2007 – 26 O 358/05
Higher Regional Court Cologne – Judgment of December 14, 2007 – 6 U 121/07
(published in OLGR 2008, 461)
Source: Press release of the Federal Court of Justice
Goldberg Rechtsanwälte
Michael Ullrich, LL.M. (Information Law)
Attorney-at-Law and
Specialist Lawyer for Information Technology Law (IT Law)
Email: info@goldberg.de
