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According to the Regional Court of Hamburg (decision of 10.03.2016, ref.: 312 O 127/16), the use of Google Analytics without a sufficient data protection notice constitutes a breach of competition law. In addition to high fines, warnings are a possible consequence.
Hamburg Regional Court issues temporary injunction
A website operator used Google Analytics without indicating this in a privacy policy. A competitor obtained an interim injunction from the Hamburg Regional Court. The judges prohibited the website operator from using Google Analytics in its previous form. He had to refrain from
to use the Internet analysis service “Google Analytics” on the website […] without informing visitors to the website at the beginning of the usage process about the type, scope and purpose of the collection and use of personal data, if this happens as on March 3, 2016 at the Internet address […].
Data protection: trend towards admissibility of warnings in the event of violations
There are currently a conspicuous number of reports circulating about warnings for breaches of data protection regulations. The Munich Higher Regional Court has taken a critical view of the ability to issue warnings for breaches of data protection law among competitors. The provisions of the German Federal Data Protection Act (BDSG) should not constitute market conduct regulations, irrespective of the fact that their violation can certainly have an impact in business life (OLG Munich, judgment of 12.01.2012, Ref.: Ref. 29 U 3926/11 with reference to KG Berlin, decision of 05.10.2007, Ref.: 2 W 1/07 Kart).
Neither consumers nor entrepreneurs are covered by § 4 para. 1, § 28 para. 1, para. 3, § 35 para. 2, para. 3 BDSG with regard to competitive interests as market participants, which alone are relevant for a violation of Sections 3, 3a UWG (Section 4 No. 11 UWG old version). The Cologne Higher Regional Court held quite differently (judgment of 19.11.2010, ref.: 6 U 73/10) that Section 4 para. 1 BDSG is a statutory provision within the meaning of Section 3a UWG (Section 4 No. 11 UWG old version). It would regulate market behavior in the interests of market participants. In its ruling of 17.01.2014 (case no.: 6 U 167/13), the Higher Regional Court of Cologne also recognized Section 28 para. 3 BDSG as a market conduct rule within the meaning of Section 4 No. 11 UWG old version.
The lack of a privacy policy can also be a breach of competition law: Warning for Google Analytics
The Higher Regional Court of Hamburg ruled (judgment of 27.06.2013, ref.: 3 U 26/12) that a warning could be issued for the lack of a privacy policy. In the opinion of the Senate, Section 13 TMG is a standard regulating market conduct within the meaning of Section 4 No. 11 UWG (old version). § According to the aforementioned recitals of the Data Protection Directive, Section 13 TMG is also intended to protect the competitive development of competitors by creating a level playing field. Similarly, the Regional Court of Cologne decided on November 26, 2015 (case no.: 33 O 230/15) that the lack of a data protection declaration within the meaning of Section 13 TMG could constitute a breach of competition that is subject to a warning.
Don’t risk a warning: Google Analytics can be used safely
A decision by the BGH is still pending. However, due to the discernible trend so far towards the ability to issue warnings for breaches of data protection regulations or the lack of information in data protection declarations, caution is advised. Website operators should not carelessly use analysis tools such as Google Analytics and take warning letters lightly. After all, the value in dispute in proceedings can amount to around €20,000. The data protection officer from Hamburg gave advice on the legally compliant use of Google Analytics in 2011. The following should be noted in particular:
- Users must be given the opportunity to object to the collection of usage data.
- Anyone using Google Analytics should conclude a written data processing agreement with Google in accordance with Section 11 BDSG.
- Google Analytics provides the _anonymizelp function in the JavaScript library ga.js (and more recently ga(‘set’, ‘anonymizeIp’, true) in the analytics.js library) to offer website owners the option of anonymizing all IP addresses of their users within the product.
- All Google Analytics data should be deleted if it has been used unlawfully in the past. If necessary, a new account should be created.
Simply creating a website and having a presence on the Internet is a thing of the past. Nowadays, website operators are exposed to a multitude of legal pitfalls. There is simply no getting around some basic precautions.
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