The plaintiff is the Federal Association of Consumer Centres and Consumer Associations. The defendant organises and operates the customer loyalty and discount system "HappyDigits". The plaintiff is suing the defendant for an injunction against the use of clauses which the defendant uses in its registration forms. In the appeal proceedings, the VIII. In the appeal proceedings, the VIII Civil Senate of the Federal Court of Justice, which is also responsible for sales law, had to decide on the validity of two clauses.
The first clause, placed in the middle of the form and additionally outlined, the use of which the Court of Appeal prohibited, reads:
"Consent to advice, information (advertising) and marketing
I agree that my personal data collected at HappyDigits (name, address, date of birth) and my programme data (number of Digits collected and their use; type of goods and services purchased; voluntary information) are stored, processed and used by D GmbH [...] as operator of the HappyDigits programme and its partner companies for market research and written consulting and information purposes (advertising) about products and services of the respective partner companies. [...] If you do not agree, delete the clause [ ...]".
The Federal Supreme Court has ruled that the clause is effective. It only concerns consent to the storage, processing and use of data for sending advertising by post and for market research purposes. As the Federal Court of Justice ruled after issuing the appeal judgement (judgement of 16 July 2008 - VIII ZR 348/06 - "Payback"), the provisions of the Federal Data Protection Act (Bundesdatenschutzgesetz - BDSG) are the sole standard of review in this respect for the question of whether such consent constitutes provisions that deviate from or supplement statutory provisions within the meaning of Section 307 (3) sentence 1 BGB.
From the point of view of data protection law provisions, the clause is not objectionable. According to this, consent to the storage, processing and use of data can be given in writing together with other declarations, provided that - as here - it is particularly emphasised. It is true that the clause - in contrast to the clause which was the subject of the "Payback" decision of 16 July 2008 - does not provide for the possibility to tick an additional box to deselect it, but indicates in bold print the possibility to delete the clause. However, the option to opt out by ticking a box is not mandatory if the clause contains another option to opt out and complies with the highlighting requirement of Section 4a (1) BDSG. This is the case here. Clause 1 is placed in the middle of the form, which comprises one printed page, and is the only paragraph on the page with an additional frame, so that it attracts attention for that reason alone. From the bold headline it can be immediately inferred, already due to the word "consent" used, that it contains a legally relevant consent of the consumer to advertising and marketing measures which - as is known to an averagely understanding consumer - are generally accompanied by the storage and use of data.
The amendment of the Federal Data Protection Act with effect from 1 September 2009 has not changed this. Pursuant to Section 28, Paragraph 3, Sentence 1 BDSG nF, the processing or use of personal data for purposes of address trading or advertising is permissible if the data subject has consented. If the consent is to be given in writing together with other declarations, it must be particularly emphasised in a clear typographical form pursuant to Section 28 (3a) sentence 2 BDSG nF. According to the explanatory memorandum, the requirements contained in the provision are intended to correspond to those which the Federal Court of Justice placed on the highlighting of the declaration of consent in its decision of 16 July 2008. Thus, even under the new version of the Federal Data Protection Act, an "opt-out" provision for giving consent to the processing and use of personal data for purposes of advertising by post is permissible. A further consent to the use of such data for advertising by way of electronic mail (SMS, e-mail), which according to Section 7 (2) No. 3 UWG can only be effectively granted by a separate declaration ("opt-in"), 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 Court of Appeal did not object to, reads:
"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."
The Federal Court of Justice ruled that this clause is invalid (section 307(2) no. 1 in conjunction with section 305(2), section 308 no. 5 BGB). It is intended to effect the inclusion of the General Terms and Conditions of Participation used by the defendant in the contracts to be concluded without the necessary preconditions being met (§ 305 para. 2 BGB). A prerequisite for the effective inclusion is, inter alia, that the user gives the other party to the contract the opportunity, at the time of conclusion of the contract, to reasonably take note of the content of general terms and conditions (section 305 (2) no. 2 BGB). However, the clause assumes that the General Terms and Conditions of Participation are not available to the participants when submitting the application for participation, but are only sent later with the card. The contract concluded without the inclusion of the General Terms and Conditions of Participation is then to be subsequently included by the fact that the participants' consent to the amendment to the contract is deemed to have been given by the first use of the card in violation of § 308 no. 5 BGB. This constitutes an unreasonable disadvantage for the consumer.
Legal regulations:
§Section 4a (1) sentence 4 BDSG reads: "If consent is to be given in writing together with other declarations, it shall be specifically highlighted".
§Section 28 (3) sentence 1 BDSG nF reads: "The processing or use of personal data for purposes of address trading or advertising is permissible if the data subject has consented (...)".
§Section 28 (3a) sentence 2 BDSG nF reads: "If the consent is to be given in writing together with other declarations, it shall be particularly emphasised in a clear typographical form".
§Section 7 (2) no. 3 UWG reads: "Unreasonable harassment is always to be assumed in the case of advertising using an automatic calling machine, a fax machine or electronic mail without the prior express consent of the addressee (...)".
Judgment of the Federal Supreme Court of 11 November 2009 - VIII ZR 12/08
Lower courts:
Cologne Regional Court - Judgment of 9 May 2007 - 26 O 358/05
Cologne Higher Regional Court - Judgment of 14 December 2007 - 6 U 121/07
(published in OLGR 2008, 461)
Source: Press release of the BGH
Goldberg Attorneys at Law
Michael Ullrich, LL.M. (Information Law)
Lawyer and
Specialist lawyer for information technology law (IT law)
E-mail: info@goldberg.de
