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 only applies to advertising by post. If the subscriber does not want this, he should delete the clause. The plaintiff, the Federal Association of Consumer Organizations and Consumer Associations, 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 regulations have been agreed through such consent 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 opting out 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 is also clearly highlighted in accordance with Section 4a (1) BDSG. The new version of the BDSG as of September 1, 2009 has not changed this either. The consent required in accordance with Section 28 (3a) sentence 1 BDSG must be highlighted in writing in accordance with Section 28 (3a) sentence 2 BDSG.

According to the explanatory memorandum, however, the other requirements should correspond to the provisions of the "Payback" ruling of the Federal Court of Justice (judgment of July 16, 2008, case no. VIII ZR 348/06). According to this ruling, an "opt-out" regulation for advertising by post is permissible. In contrast, an "opt-in" is only necessary for advertising by email or text message.

The differentiation in questions of consent is increased by this ruling. Companies should therefore carefully check which type of advertising mailing the participants have consented to and how the contract was structured. Ideally, a company will keep all mailing methods open by providing the contracts directly with an "opt-in". The risk of consumers not giving their consent is significantly greater than in "opt-out" cases.

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