With the entry into force of the new
Unterlassungsklagengesetz (UKlaG) [otherwise known as the
"Gesetz zur Verbesserung der zivilrechtlichen Durchsetzung von
verbraucherschützenden Vorschriften des
Datenschutzrecht"/"Act to improve the private enforcement
of consumer protection rules of data protection law"] on
February 24, 2016 consumer protection and other qualified
associations are allowed to send warning letters or to sue
companies that breach data protection law. This particularly
applies to data processing for advertising, personality profiles,
address and data trade, market and opinion research. It also
applies when companies illegally collect and store a lot of data or
do not delete the data after use.
So far, such associations only had a very limited right of
action and could only be active when companies have violated the
Terms and Conditions (Allgemeine
Geschäftsbedingungen). So this creates a new German
enforcement risk in addition to action by German DPAs.
From now on, all data protection regulations that apply to
companies when collecting, processing or using personal information
of consumers are considered as being applicable under the Consumer
Protection Act (Verbaucherschutzgesetz) by inserting a new
§ 2 para. 2 number 11 UKlaG. The aim is to protect consumers
Potential associations need to register
Before an association can bring an action, it must meet a number
of conditions and needs to be registered at the Federal Office of
Justice (§ 3 para. 1 sentence 1 number 1, § 4 UklaG).
Reactions and possible consequences
German consumer protection associations were greeting the new
legal instrument as an important improvement of data protection in
Germany. The new legal regime is likely to trigger a new wave of
warning letters to business. Under German law, the recipient of a
warning letter has to react to the letter. If he fails to do so or
the reaction is unsatisfactory from the point of view of the
sender, interim injunctions and further litigation may be the
The new law also leads to a significant simplification of rules
for the termination of online contracts. These may be terminated in
the same form as they have been concluded, thus by a web form or an
e-mail. A more formal approach, the so-called written form, may no
longer be required in the Terms and Conditions.
German enforcement of DP laws just become higher risk! Beware
the new risk from the German consumer associations.
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