Germany: Frankfurt Am Main Higher Regional Court: Participation In Prize Games May Be Made Conditional On Granting A Consent To Receive Future Advertising

Last Updated: 28 August 2019
Article by Stefan Peintinger
Most Read Contributor in Germany, October 2019

On June 27, 2019, Frankfurt am Main Higher Regional Court ("OLG Frankfurt a. M.") issued a ruling, Case 6 U 6/19, on various aspects of competition and data protection law relating to the interaction of a consent requirement and participating in prize games.

OLG Frankfurt a. M. decided that participating in a prize game may be made conditional on consenting to receive future advertising. While the official headnote only refers to e-mail advertising, the merits of the decision relate in particular to consenting in receiving advertising calls, which were apparently the sole matter of the complaint. Since both are legally possible in the case of proper consent, this circumstance is not of key importance (cf. Section 7 (2) no. 2 and no. 3 Act against Unfair Competition).

In addition, OLG Frankfurt a. M. ruled that consent may be obtained on behalf of several advertising companies ("advertisers") if the advertising medium and, in particular, the range of products or services offered by the individual advertisers are described sufficiently clearly. If an advertiser's advertising measures are not sufficiently described, this does not in principle impair the effectiveness of the consent in relation to the other advertisers.

Consent requirement and participation in sweepstakes

It is one of the requirements of the General Data Protection Regulation ("GDPR") that consent must be freely given. As part of assessing this requirement, it must also be examined whether the performance of a contract is made conditional on the granting of such a consent (cf. Article 7 (4) GDPR; referred to in Germany as general prohibition of interconnecting a consent requirement with concluding a contract). As far as evident, the German data protection supervisory authorities view this relatively strictly. Accordingly, a data subject should in principle have the possibility of entering into a contract (here in order to participate in a prize game) without having to grant (advertising) consent. Something else could apply if consent under data protection law is necessary to achieve the objective of a contract. These are particular cases, however, with regard to processing special categories of personal data.

In practice, these considerations led to companies setting up prize games without a requirement to grant an advertising consent.

According to OLG Frankfurt a. M., companies do not have to pursue this restrictive view further. OLG Frankfurt a. M. equated the characteristic "freely" with the term "without force." A data subject is not forced to participate in prize games. Consequently, a data subject is not forced to grant an advertising consent either. Linking a consent requirement with participating in prize games does not preclude the voluntary nature of such consent. Consumers can and must decide for themselves whether participation is "worth" the disclosure of their data. According to these findings, OLG Frankfurt a. M. makes no reference to the general prohibition of interconnecting a consent requirement with concluding a contract.

Consent in favor of several advertisers

A declaration of consent must, among other things, be given in an intelligible and easily accessible form, using clear and plain language. These characteristics are particularly problematic where a declaration of consent is to be obtained in favor of several companies (here: eight advertisers). The listing of several advertisers and their respective processing purposes may already lead to a more complex declaration of consent, which might then possibly be incomprehensible.

In the case at hand, OLG Frankfurt a. M. did not have any doubts regarding the necessary clarity in relation to those eight advertisers. In this context, OLG Frankfurt a. M. held that the lack of clarity regarding one advertiser does not affect the validity of the consent given to another, specifically named advertiser.

The wording "marketing and advertising" does not indicate, as relates to an advertiser, the type of products for which consent to the advertising has been given. This would not affect the validity of the consent(s) given in a sufficiently concrete manner in favor of the other advertisers (in this case, "electricity & natural gas"). The lack of recognizability of an advertiser's processing purposes does not lead to "infecting" the entire declaration of consent also in relation to the other advertisers.

Burden of proof

The statements on burden of proof by OLG Frankfurt a. M. are also of interest. OLG Frankfurt a. M. regards the "double opt-in" procedure for consent to telephone advertising as "of little probative value."

Prize game participants would be able to indicate by marking a designated field on the relevant entry form that they were in agreement with an advertising phone call. Where such a declaration of consent was available, participants have been asked to confirm their consent via a separate follow-up call.

In contrast to the double opt-in procedure for receiving advertising emails, there would be "numerous, not remote reasons" to provide a wrong telephone number. According to OLG Frankfurt a. M., advertisers would therefore bear the burden of proof that the phone number is assigned to the respective prize game participant. Where the advertiser has satisfied that burden of proof, however, it is again incumbent on the recipient of the phone call to demonstrate that no corresponding advertising consent has been given after all.

Competition law and GDPR infringements

For the time being, there is no uniform jurisdiction yet as to whether a GDPR infringement can be sanctioned under German competition law. OLG Frankfurt a. M. did not address this question. In the case at hat, the statutory provisions governing the dispute are those of the Act against Unfair Competition (in particular Section 7 (2) Act against Unfair Competition), but they find their basis in Community law in the ePrivacy Directive (cf. Article 13 Directive 2002/58/EC).

Practical tip:

The judgment gives legal practitioners a certain amount of room for maneuver (back). It remains to be seen whether other courts will follow this ruling. It is possible that a different decision could be reached in case of an in-depth discussion of the general prohibition of interconnecting a consent requirement with concluding a contract. In the case of differing Higher Regional Court rulings, it would be up to the Federal Court of Justice and the Court of Justice of the European Union to provide final clarification.

In individual cases, companies should examine whether to make participation in prize games dependent on granting a consent, including in favor of several advertisers, or whether to select another option.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions