Advertising by post for market research purposes

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Decision of the Federal Court of Justice

from K. Schiefer

With a decision of November 11, 2009, the Federal Court of Justice (BGH) added another stone to the data protection consent edifice.

The defendant operates a customer loyalty and discount system. The registration form contains a declaration of consent in bold print and with a border in the middle of the page. It states that the participant agrees to the use of their personal data collected via the system "for market research and written advice and information purposes (Advertising) about products and services of the respective partner companies".

It relates exclusively to the Advertising by post. If the subscriber does not want this, he should delete the clause. The Federal Association of Consumer Organizations and Consumer Associations, as the plaintiff, is suing the defendant for, among other things, an injunction against the use of this clause. The BGH declared this clause admissible in its ruling of 11.11.2009 (case no. VIII ZR 12/08).

The Federal Data Protection Act (BDSG) is the sole standard of review for the question of whether such a Consent provisions have been agreed that deviate from or supplement legal provisions within the meaning of Section 307 (3) sentence 1 BGB. The fact that there is no checkbox for deselection is irrelevant as it is not mandatory. Rather, there is another option available.

According to this ruling, the possibility of deletion is sufficient. The clause was also clearly highlighted in accordance with Section 4a (1) BDSG. Even the new version of the BDSG as of September 1, 2009 has not changed this. The clause required pursuant to Section 28 para. 3 sentence 1 BDSG Consent must be highlighted in accordance with Section 28 (3a) sentence 2 BDSG.

According to the explanatory memorandum, the other requirements, on the other hand, are to correspond to the specifications from the "Payback" ruling of the BGH (ruling of July 16, 2008, case no. VIII ZR 348/06). According to this, an "opt-out" regulation for Advertising by post is permissible. An "opt-in", on the other hand, is only Advertising by e-mail or SMS is necessary.

The differentiation in questions of Consent is increased by this judgment. Companies should therefore, in the event of a Consent carefully check in which shipping method for Advertising the participants have consented and how the contract was structured. Ideally, a company will keep all mailing methods open by providing the contracts directly with an "opt-in". However, there is a risk that consumers Consent significantly greater than in the "opt-out" cases.

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