People active in E-Commerce are as a rule subject to the German Act on Protection of Data in Telecommunication Services (TDDSG), a body of rules targeted specifically to telecommunication services which, among other things, include homepages or mobile services. In certain cases – for instance for the transmission of advertising in the form of a newsletter – the TDDSG only allows the collection of data if the person concerned has given his consent. The question how such a consent in the sense of the TDDSG would have to be designed, has so far been unclear. A decision by the OLG (Higher Regional Court) of Brandenburg has now thrown some light on the subject (Judgement of 11.01.2006, ref. 12 O 287/04). It had to decide on the practise for consent used by the online auction house eBay. A consumer protection association had objected to the implementation of data protection provisions by eBay and filed a law suit. Among other topics, the case concerned a clause in which eBay reserves the right to send an advertising newsletter to the customers and also to present them with custom-tailored offers on the page „my eBay“.
Consent: double confirmation required
The TDDSG provides for the consent to only be given by an unambiguous and conscious act (comp. § 4 Section 2 No. 1 TDDSG). The court confirmed the view taken by legal literature that this requires a repeated confirmation of the transmission instruction. In other words: it is not sufficient to just tick a checkbox, the user must confirm his consent a second time. The practise used by eBay and objected to by the plaintiff, to show an additional control box with the text „I accept and agree“ was regarded as admissible by the court. It held that this made it clear to the user that the second instruction was a confirmation of the first instruction.
Data protection declaration: pop-up window and scrolling admissible
The obligation to inform the user of the processing of his data in the so-called data protection declaration (comp. § 4 Section 1 TDDSG) also has been implemented correctly by eBay according to the view held by the court. It thought it admissible to display the text in a pop-up window containing five lines and to let the user scroll through the text; the court at least considers the „user with average knowledge“ to be capable of recognising the importance and functionality of a scrollbar. As the user, in the case in hand, still had the possibility of printing out the regulations, the court held the implementation of the data protection declaration to be sufficient as a whole.
Prohibition of coupling: no monopoly position at a market share of 76%
A further question considered by the court was a possible violation of the so-called prohibition of coupling. The plaintiff had objected to eBay only admitting the registration of new users with a simultaneous consent to the reception of the advertising newsletter; a registration without the corresponding consent was not possible.
§ 3 Section 4 TDDSG prohibits a practise like that, if the user has no other access opportunity to such offers. This regulation is to be applied, according to the view taken by legal literature – and also by the OLG of Brandenburg – if the provider holds a monopoly position. The OLG of Brandenburg has now given figures for when this is assumed to be the case. The judges held that a market share of 76% at any rate does not support the assumption of a monopoly position.
All in all, the decision by the OLG of Brandenburg takes a stand on a variety of questions from the area of data protection in telecommunication services. It is satisfying to know that here for once the detailed implementation was made the subject of examination by a court and was positively confirmed.