OLG Stuttgart - 2 U 63/22

OLG Stuttgart - 2 U 63/22
Court:	OLG Stuttgart (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 6(1)(f) GDPR Article 21 GDPR Article 82 GDPR
Decided:	02.02.2024
Published:	02.02.2024
Parties:	Dansk Retursystem
National Case Number/Name:	2 U 63/22
European Case Law Identifier:	ECLI:DE:OLGSTUT:2024:0202.2U63.22.00
Appeal from:	LG Stuttgart (Germany) 17 O 807/21
Appeal to:	Unknown
Original Language(s):	German
Original Source:	Baden-Württemberg State Law BW (in German)
Initial Contributor:	Mgrd

A German Court dismissed a data subject's claim for non-material damages against Dansk Retursystem for sending advertising letter without customer relationship, allegedly violating Article 6(1)(f) GDPR.

English Summary

Facts

The data subject claimed for damages due to an alleged violation of the GDPR by Dansk Retursystem, which sent an advertising mail to the data subject. He argued that this act was an unauthorized use of his personal data for direct advertising, as there was no pre-existing customer relationship with the defendant or its business partners.

In May 2021, Dansk Retursystem sent to the data subject an advertising letter advertising products from X. Lebensversicherung AG.

As a result, the data subject demanded information from the defendant and the deletion of his data.

The controller replied that it had received the data from the company AD from Switzerland and processed it on behalf of X. Lebensversicherung AG for marketing purposes on the basis of Article 6(1)(f) GDPR, without transmitting the data to the client itself.

The data subject did not consent to such processing of his personal data and there was no customer relationship with the defendant or its business partners. Due to that, the data subject claimed for non-material damages pursuant to Article 82 GDPR in the amount of EUR 3,000.00, as well as pre-trial legal costs.

The Regional Court dismissed the claim because they understood that the advertising letter was lawful within the meaning of Article 6(1)(f) GDPR.

They recognized that advertising can be a legitimate interest within the meaning of the controller's business, also because the data subject's interests do not outweigh the interests of the controller. In addition, they highlighted that having a customer relationship before the direct advertising it is not a requirement.

Unsatisfied, the data subject appealed, requesting a compensation for his non-material damage in the amount of €3,000.00 and the reimbursement of the appeal in the amount of €603.93.

Holding

The Court decided to uphold the judgment of the Stuttgart Regional Court, dismissing the data subject's appeal.

They concluded that the advertising mail sent by Dansk Retursystem was lawful under Article 6(1)(f) GDPR and there was no need for an existing customer relationship for direct advertising to be considered a legitimate interest.

Also, they highlighted that the data subject's claim for damages under Article 82 GDPR was unfounded, since he failed to demonstrate that he suffered any actual harm or distress beyond mere displeasure from receiving the advertisement.

The Court reaffirmed that the use of personal data for direct advertising in this context complied with the GDPR, as the processing was aligned with recognized legitimate interests and did not disproportionately impact the data subject's rights or freedoms.

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English Machine Translation of the Decision

The decision below is a machine translation of the German original. Please refer to the German original for more details.

Compensation for violation of the General Data Protection Regulation by sending advertising mail

Guideline
1. The legality of direct advertising does not require that a customer relationship already exists. (Rn.15)

2. In interpreting Article 6 paragraph 1 sentence 1 letter f of the GDPR, direct advertising is recognized as an example of a legitimate interest within the meaning of the aforementioned standard. The term legitimate interests is to be understood as all legal, economic or non-material interests that may also lie outside or in advance of a customer relationship (in connection with the Lüneburg Higher Administrative Court, decision of January 19, 2021 - 11 LA 16/20). (Rn.15)

3. Sending electronic messages without prior express consent constitutes unreasonable nuisance, while sending a letter with a message that is immediately recognizable as advertising is considered permissible (in connection with the Federal Court of Justice, judgment of March 3, 2011 - I ZR 167/09). (Rn.16)

Hide course of proceedingsProcedure
previous LG Stuttgart, February 25, 2022, 17 O 807/21, judgment
Tenor
1. The oral hearing date of February 29, 2024 is canceled.

2. The Senate intends to dismiss the appeal against the judgment of the Stuttgart Regional Court of March 18, 2022.

3. There is an opportunity to comment on this until February 22, 2024

Reasons
A

Margin number 1
The plaintiff is demanding damages for violations of the General Data Protection Regulation (GDPR).

Margin number 2
With regard to the facts of the case, reference is made to the factual findings of the Regional Court. In summary: In May 2021, the defendant sent the plaintiff an advertising letter advertising products from X. Lebensversicherung AG. The plaintiff subsequently demanded information from the defendant and the deletion of his data. The defendant replied that it had received the data from the company A. D. in Switzerland and processed it on behalf of X. Lebensversicherung AG for marketing purposes on the basis of Article 6 paragraph 1 letter f GDPR, without transmitting the data to the client itself (so-called letter shop procedure). The plaintiff did not consent to such processing of his personal data. There was no customer relationship with the defendant or its business partners.

Marginal number 3
The plaintiff is of the opinion that the defendant processed his personal data without legal grounds by sending the advertising letter. Direct advertising is only permissible within an existing customer relationship.

Marginal number 4
The plaintiff is asserting a claim for non-material damages in accordance with Article 82 GDPR in the amount of EUR 3,000.00 as well as pre-trial legal costs.

Marginal number 5
The regional court dismissed the action with its judgment published in ZD 2022, 508. The sending of the advertising letter was lawful within the meaning of Article 6 paragraph 1 sentence 1 letter f GDPR. It is recognized that the provision of commercial information can be a legitimate interest within the meaning of this provision. The interests of the plaintiff do not outweigh the interests of the defendant or its clients. It is not a requirement that a customer relationship already existed before the direct advertising. The plaintiff has not provided evidence of other violations of the General Data Protection Regulation by the defendant, in particular not the transmission of data to third parties. Pre-trial legal costs are not to be reimbursed in the absence of a main claim.

Paragraph 6
With his appeal, the plaintiff is pursuing his claims further. In this case, the plaintiff lacks the necessary proximity to the defendant, as is assumed in the context of a customer relationship. The data collection by the company A. D. on the website www.b.xxx.com, a publicly accessible address directory, was already unlawful. The plaintiff did not publish his data there. Sending the advertising letter was unlawful because data processing was not necessary. Sending electronic advertising is a milder means, although the user's consent is required. Furthermore, the plaintiff's interest in not receiving advertising outweighs the defendant's interests. The illegality of the data processing also arises from profiling within the meaning of Article 22 GDPR.

Paragraph 7
The plaintiff requests

Paragraph 8
1. the respondent to pay the appellant compensation for his non-material damage in the amount of €3,000.00 plus interest at a rate of 5 percentage points above the respective base interest rate since the action was brought and

Paragraph 9
2. the respondent to reimburse the appellant an additional claim in the amount of €603.93 plus interest at a rate of 5 percentage points above the respective base interest rate since September 20, 2021.

Paragraph 10
The defendant requests that

Paragraph 11
the appeal be dismissed.

B

Paragraph 12
The Senate is unanimously of the opinion that the appeal clearly has no prospect of success, that the case is also of no fundamental importance, that neither the development of the law nor the securing of uniform case law requires a decision by the appeal court and that an oral hearing on the appeal is not necessary.

Paragraph 13
The regional court correctly rejected the plaintiff's claim for damages. Reference is made to the convincing reasoning of the regional court in order to avoid repetition.

I.

Paragraph 14
In particular, the regional court correctly and convincingly established that both the collection of the publicly available data and the processing of the data underlying the sending of the advertising letter were carried out in accordance with Article 6 paragraph 1 sentence 1 letter f of the GDPR.

Paragraph 15
Contrary to the opinion of the appeal, the legality of direct advertising does not require that a customer relationship already exists. In its interpretation of Article 6 paragraph 1 sentence 1 letter f GDPR, the regional court convincingly used Recital 47, which recognizes direct advertising as an example of a legitimate interest within the meaning of the aforementioned standard. The regulation understands this term - for example in Article 21 paragraph 2 GDPR - to mean any direct contact with the data subject, for example by sending letters (Buchner/Petri in: Kühling/Buchner, GDPR, 4th ed. 2024, Article 21 GDPR, marginal no. 26). Neither Article 6 paragraph 1 sentence 1 letter f GDPR nor the recitals provide any indication that direct advertising is only recognized as a legitimate interest within an existing customer relationship. Rather, the term legitimate interests is to be understood as all legal, economic or ideal interests (OVG Lüneburg, decision of January 19, 2021 - 11 LA 16/20, juris para. 16), which can also lie outside or in advance of a customer relationship. The regional court also correctly saw that the legitimate interest of a third party - in this case the interest of X. Lebensversicherung AG in the distribution of the advertising message - is equivalent to the interest of the defendant as the controller.

Paragraph 16
The regional court also convincingly established that the processing of the personal data was necessary. In particular, the necessity is not contradicted by the appeal's objection that it would also be possible to send the advertising by electronic mail. Although personal data should not be processed if the purpose of the processing can reasonably be achieved by other means that are less intrusive with the fundamental rights and freedoms of the data subjects (ECJ, judgment of July 4, 2023 - C-252/21, para. 108), the plaintiff cannot, however, instruct the defendant to argue that sending electronic messages is less burdensome for those affected. According to the assessment of the German legal system, sending electronic messages without prior express consent constitutes unreasonable harassment (cf. Section 7 Paragraph 2 No. 2 of the Act Against Unfair Competition), while sending a letter with a message that is immediately recognizable as advertising is considered permissible (BGH, judgment of April 30, 1992 - I ZR 287/90, juris Rn. 14 - mail advertising; BGH, judgment of March 3, 2011 - I ZR 167/09, juris Rn. 19 - sending credit card).

Paragraph 17
The regional court also convincingly weighed up the interests of the parties to the dispute and correctly assumed that the interests, fundamental rights and freedoms of the plaintiff do not outweigh the interests of the defendant and its client. The plaintiff's interest in not receiving advertising alone does not lead to a balancing of interests that is favorable to him. Only if he raises an objection is future direct advertising prohibited (Article 21 paragraph 2 GDPR).

II.

Margin number 18
The regional court correctly did not classify the other actions complained of as violations of the General Data Protection Regulation. In particular, the plaintiff was clearly not subjected to a decision that was binding on him or significantly detrimental to him within the meaning of Article 22 paragraph 1 GDPR and that was made on the basis of automated processing of his data (so-called profiling). The plaintiff has not presented any evidence of such a detrimental decision.

Margin number 19
The claim that the defendant provided the plaintiff with incomplete information about the processing of his data cannot be established either. This was not asked before the court, and in the first instance the defendant stated that it had not linked the plaintiff's personal data to additional information. The question of whether incomplete information can lead to a claim for damages under Art. 82 GDPR is no longer relevant (on the dispute: OLG Stuttgart, judgment of November 22, 2023 - 4 U 20/23, juris para. 381 ff.).

III.

Paragraph 20
Regardless of the fact that violations of data protection law cannot be ascertained, the plaintiff has also not sufficiently demonstrated that he has suffered damage. According to the case law of the European Court of Justice, it is not necessary for the damage to exceed a certain degree of significance. Nevertheless, the mere violation of provisions of the regulation does not give rise to a claim for damages. Rather, it must be established that damage has actually occurred (ECJ, judgment of May 4, 2023 - C-300/21, paras. 42, 51). In this respect, the plaintiff relies on the psychologically stressful uncertainty about the fate of the data caused by the loss of the data. This statement is not sufficient to demonstrate damage, because it must be possible to determine whether the fear of future misuse of the data can be considered justified under the given special circumstances and with regard to the person concerned (see ECJ, judgment of December 14, 2023 - C-340/21, para. 85). However, this is not apparent on the basis of the convincing and unchallenged finding of the regional court that the defendant did not transmit the personal data to third parties. In addition, the defendant deleted the data or internally blocked it in order to prevent future advertising mailings.

C

Paragraph 21
In view of all of the above, the appeal has no prospect of success, which is why it will have to be dismissed in accordance with Section 522 (2) of the Code of Civil Procedure with the costs resulting from Section 97 (1) of the Code of Civil Procedure. It is suggested that consideration be given to whether the appeal should be withdrawn for cost reasons.