The Legal Situation
We have already reported in our article “Can data protection violations be subject to cease-and-desist letters?“ that it is currently disputed in legal literature whether data protection violations can also be subject to cease-and-desist letters under competition law. In this context, we had also already referred to an initial decision by the Würzburg Regional Court (LG Würzburg, decision of 13.9.2018, file no. 11 O 1741/18). This court assumed that in the event of data protection violations, these violations could also be subject to cease-and-desist letters under competition law. We have also already pointed out that we do not share the argumentation and reasoning of the Würzburg Regional Court and consider this decision to be legally flawed.
The Case
The Bochum Regional Court also had to decide on a case in which, among other things, violations of the information obligations under Article 13 GDPR were asserted.
The Decision
In its final judgment, the Bochum Regional Court (judgment of 07.08.2018, file number: I-12 O 85/18) largely granted the applicant's request for an injunction. Only the claim based on the GDPR was not awarded to him.
The Regional Court held that the applicant for an injunction cannot assert violations of the General Data Protection Regulation through the provisions of competition law. The Regional Court explained that the General Data Protection Regulation, in Articles 77 to 84 GDPR, contains exclusive and conclusive provisions that preclude claims by competitors. Therefore, in the opinion of the Bochum Regional Court, asserting data protection violations within the framework of competition law disputes through the provisions of the UWG is not possible.
Unlike the Würzburg Regional Court, the Bochum Regional Court substantively addressed the disputed legal question of whether data protection violations can also be subject to cease-and-desist letters under competition law. The decision of the Bochum Regional Court is also shared by renowned legal scholars. It remains to be seen how other courts will decide. In any case, the topic of “GDPR cease-and-desist letters” has now become current. Whether the long-awaited wave of cease-and-desist letters will now occur remains to be seen.
Our Recommendation
We strongly recommend that you ensure your company complies with data protection regulations, as otherwise, in addition to significant fines, cease-and-desist letters under competition law are also imminent.
GoldbergUllrich Attorneys at Law 2018
