In its ruling from March 11, 2016 (Ref.: 6 U 121/15), the Higher Regional Court of Cologne is data protection-friendly.
It assumes that the lack of a privacy policy constitutes a breach of competition law that is subject to a warning if a contact form is provided on the website.
According to the Higher Regional Court of Cologne, this protection requirement is violated if the user is not informed in the privacy policy that he can revoke his consent to the storage and use of his data despite the provision of a contact form.
Necessity of the privacy policy
Data protection has long since become the central issue of our time.
The increasing amount of data to be processed is forcing legislators and courts to introduce strict regulations.
The call for more transparency in the handling of data is becoming ever louder.
For this reason, competitors are obliged to inform their customers how and, above all, to what extent the acquired data is handled.
This measure protects customer data and applies to all competitors to the same extent.
Lack of privacy policy despite contact form constitutes a breach of competition law
In the opinion of the Higher Regional Court of Cologne, the lack of such a declaration is not only a breach of data protection law, but above all a breach of competition law.
This means that the court considered the lack of a privacy policy to be a disadvantage for competitors.
Specifically, the court based its considerations on a violation of Section 4 No. 11 UWG (old version) in conjunction with Section 13 TMG.
Section 4 no. 11 UWG (old version) states that an anti-competitive act is deemed to have occurred if a norm regulating market behavior is violated.
This includes all norms that regulate the behavior of market participants on the market.
These norms represent a basic framework that applies to all competitors to the same extent.
§ Section 13 TMG as a standard regulating market behavior
In its reasoning, the Higher Regional Court of Cologne cites Section 13 TMG as the relevant market conduct regulation.
According to the court, the provision also serves to protect the interests of competitors and is therefore a regulation within the meaning of Section 4 No. 11 UWG (old version), which is intended to regulate market behavior in the interests of market participants.
The breach of this (in the present case, informing users about the type, scope and purpose of the collection and use of personal data) therefore constitutes an infringement of competition law.
Impairment of consumer interests
The lack of the relevant information is also likely to significantly harm the interests of consumers and competitors within the meaning of Section 3a UWG.
It is undisputed that consumers on the Internet are particularly worthy of protection.
They have a legitimate interest in how their data is handled.
If, on the other hand, the consumer does not receive any information about the use, this can lead to misconceptions and influence their actions.
They disclose their data more quickly and without hesitation and thus risk opaque use.
The decision joins a series of other decisions (e.g. Cologne Regional Court, Düsseldorf Regional Court) and shows once again how important data protection is.
Competitors who do not comply with the regulations risk warnings and legal action.
These are not only time-consuming but also costly.