Since the entry into force of the General Data Protection Regulation (GDPR), there has been a debate on whether it is possible to issue warnings for GDPR violations under the Unfair Competition Act (UWG). The Stuttgart Higher Regional Court has now decided that the UWG can certainly be used as a basis for warnings.
Trader did not comply with information duties
At first instance, a competition association brought an action against a dealer in car parts who sold his goods on eBay. The latter had failed to inform his customers about the nature, scope and purpose of the collection and use of their personal data.
This resulted in a warning letter from a competition association, which this association ultimately wanted to enforce by taking legal action before the Regional Court of Stuttgart. Following the dismissal of the action in the first instance, the appeal process now commenced, in which the Higher Regional Court ruled in favor of the plaintiff association.
Associations are free to choose infringers
First of all, the Higher Regional Court found that, in contrast to the opinion of the defendant dealer, the competition association was entitled to bring an action and that the action did not constitute an abuse of rights. However, an objection of the defendant that the association brings an action against arbitrarily selected infringers was refuted with the argument that associations are in principle free to take legal action only against certain infringers.
GDPR specifications in conjunction with the UWG can be used as a warning
However, the basis for such warnings is decisive. For example, although the previously cited § 13 of the Telemedia Act is no longer applicable due to the entry into force of the GDPR, Art. 13 of the GDPR now takes precedence. The information required in this article regarding the processing of personal data within the framework of the internet presence of the car parts dealer had been wrongly omitted on the eBay platform, which could be asserted by way of a warning notice.
Entrepreneurs must comply with their information duties
The judgement shows that entrepreneurs should be meticulous in complying with the information obligations required by the GDPR. An increasing number of higher regional courts are confirming the admissibility of breaches of the GDPR, so that data processing organizations must expect to receive warnings and, in the event of further breaches, even heavy fines or imprisonment.
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