The Higher Regional Court of Stuttgart has ruled in an The Higher Regional Court of Stuttgart has ruled in appeal proceedings that the information requirements under Art. 13 para. (1) lit. a), c), (2) lit. b), d) and e) DSGVO are market conduct regulations according to § 3a UWG.
What was it about?
The plaintiff, a trade association, demands that the the defendant to refrain from providing an offer on the Internet without certain information on data protection.
In July 2018, the defendant offered tyres for sale as a commercial trader offered tyres for sale on the eBay platform. In addition to his company, he gave his postal address, telephone number, fax number and email address. He did not provide any data protection information. The plaintiff warned the defendant unsuccessfully.
The Stuttgart Regional Court dismissed the action for an injunction. dismissed. In essence, the Regional Court of Stuttgart based its decision on the fact that that the plaintiff could not claim injunctive relief for violations of the General Data Protection Regulation. could not assert claims for injunctive relief. Article 80(2) of the GDPR does contain a corresponding authorisation for the member states. The German legislator The German legislature had not made use of this authorisation.
Can a wrong or missing privacy policy be warned off?
In addition to In addition to various formal aspects, the Stuttgart Higher Regional Court ruled on two complexes, namely, the plaintiff's right to claim injunctive relief for violations of the the General Data Protection Regulation and that infringements against certain certain information obligations are market conduct regulations under § 3a UWG.
Are competition associations allowed to issue warnings for data protection violations?
According to According to the Stuttgart Higher Regional Court, competition associations may pursue injunctive resulting from infringements of the General Data Protection Regulation. The General Data Protection Regulation does not exhaustively regulate the power to enforce violations against the General Data Protection Regulation, so that the provisions of provisions of Section 8 (1) and (3) No. 2 in conjunction with Section 3a UWG remain applicable. § Section 3a UWG remain applicable.
This In the opinion of the OLG Stuttgart, this result follows from the history of Art. 80 GDPR, from an interpretation of recitals 11 and 13 and from a systematic 11 and 13 as well as from a systematic interpretation of the framework of the General Data Protection Regulation.
Is the breach of certain information duties anti-competitive?
According to the negative and mediating views in the literature and case law on the question of case law on the question of relevance to market conduct, the Stuttgart Higher Regional Court stated that the business contact as such touched on the data protection interests of the of the interested party and establishes corresponding obligations of the entrepreneur. justified. The information to be provided thus also serves the consumer's decision to enter into the consumer's decision to contact the business at all and to transmit data in this and to transmit data in this course. For this reason, Art. 13 of the GDPR serves the interest of of consumers and other market participants within the meaning of Section 3a UWG.
The infringement is also likely to have an appreciable adverse effect on the interests of consumers, other market or competitors. For the reasons for which the Article 13 of the GDPR are to be classified as market conduct rules, an market conduct rules, an infringement directed against this is regularly to be assessed as appreciable. to be assessed. The defendant has not argued anything to the contrary in its submitted.
The Stuttgart Higher Regional Court allowed the appeal to the Federal Supreme Court.
Why is the ruling of the Stuttgart Higher Regional Court so important?
The ruling of the Stuttgart Higher Regional Court is not yet legally binding. It is to be expected that the decision will be submitted to the BGH in the appeal to the Federal Supreme Court.
If the Federal Supreme Court confirms the ruling of the Stuttgart Higher Regional Court, all online traders will have to prepare for increased scrutiny of their data protection information obligations by competitors and competition associations. But even now, we expect numerous warnings in this area.
What do traders have to do now?
Every online trader is strongly advised to take the topic of the General Data Protection Regulation (GDPR) seriously, to seek appropriate advice and to implement the GDPR regulations in their own company as soon as possible. Otherwise, there is a risk of cost-intensive warnings from competitors, warning associations and warning associations.
Source: Judgment OLG Stuttgart of 27.02.2020, ref. 2 U 257/19, previous instance: LG Stuttgart, judgment of 20.05.2019, ref. 35 O 68/18
We are happy to advise you in the entire area of data protection law and in the legal fields of IP and IT law. Contact us and avoid justified warnings.
On this topic, also read our article "Can violations of data protection law be subject to a warning under competition law?"
GoldbergUllrich Lawyers 2020
Julius Oberste-Dommes LL.M. (Information Law)
Lawyer and
Specialist lawyer for information technology law
