LG Würzburg - 11 O 1741/18 UWG

LG Würzburg - 11 O 1741/18 UWG
Court:	LG Würzburg (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 13 GDPR § 3 a UWG § 4 (11) UWG § 8 (3) UWG § 12 (2) UWG § 14 (2) UWG
Decided:	13.09.2018
Published:
Parties:
National Case Number/Name:	11 O 1741/18 UWG
European Case Law Identifier:
Appeal from:
Appeal to:
Original Language(s):	German
Original Source:	Bayern.Recht (in German)
Initial Contributor:	Agnieszka Rapcewicz

The Regional Court Würzburg held that encryption of a website through which personal data is collected is mandatory. Moreover, failure to contain GDPR-compliant information about the processing of personal data is a breach of unfair competition law.

English Summary

Facts

The defendant was a lawyer who ran her website. The applicant alleged that the website was not adapted to the requirements of the GDPR, because it did not contain all the legally required information about the processing of personal data (currently resulting from Article 13 GDPR). In addition, it violated the law on unfair competition (the applicant was also a lawyer).

Holding

The Court prohibited the defendant from using her unencrypted website, related to her activity as a lawyer, without a data protection declaration compliant with the GDPR. The Court found that the defendant's action violates unfair competition laws.

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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.

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Title:
Competition law injunctive relief due to non-compliance with the GDPR
Standard chains:
UWG Section 3 a, Section 4 No. 11, Section 8 Paragraph 3, Section 12 Paragraph 2, Section 14 Paragraph 2
ZPO Section 32, Section 92 Paragraph 2 Item 1, Section 890 Paragraph 1, Section 937 Paragraph 2
Keyword:
Breaking the law
References:
MDR 2018, 1392
BRAK-Mitt 2018, 315
AnwBl 2018, 680
WRP 2018, 1400
K & amp; R 2018, 736
NWB 2018, 3143
GRUR-RS 2018, 22735
ZD 2019, 38
BeckRS 2018, 22735
LSK 2018, 22735


tenor


I. The respondent is prohibited from using the unencrypted website www .... without a data protection declaration in accordance with the EU General Data Protection Regulation (GDPR 2016/679) of April 27, 2016 for her professional activity as a lawyer.



II. The respondent is threatened with the imposition of a fine of up to € 250,000.00, alternatively a regular detention for up to 2 years, as well as the imposition of a regular detention of up to 6 months for each case of infringement.



III. Otherwise the application is rejected.



IV. The respondent has to bear the costs of the proceedings.



V. The amount in dispute is set at € 2,000.00.

reasons

1
The jurisdiction of the court results from § 14 Abs. 2 UWG (place of inspection, flying place of jurisdiction with regard to the Internet) and not from § 32 ZPO as stated by the applicant.


2
The applicant is entitled to an injunction to cease and desist, which the applicant has made credible that the respondent violates the General Data Protection Regulation (GDPR) with regard to its homepage, which has to be implemented at the latest since May 25, 2018. The 7-line data protection declaration contained in the legal notice of the respondent does not comply with the new GDPR. There is a lack of information on the person responsible, the collection and storage of personal data and the type and purpose of their use, an explanation of the transfer of data, cookies, analysis tools, but above all information about the rights of the data subject, in particular the right to object, data security and a note on Opportunity to complain to a supervisory authority. With the OLG Hamburg (3 U 26/12) and the OLG Cologne (6 U 121/15), the judging court assumes that the provisions violated here are violations of competition law in accordance with Section 4 No. 11 UWG or now § 3 a UWG and could thus be warned by the applicant. The fact that the respondent is collecting data is indicated by the simultaneous use of a contact form on the homepage. Since the respondent can in any case collect data via a contact form, encryption of the homepage is mandatory, which is missing here.


3
According to § 8 Abs. 3 UWG the applicant is actively legitimized to assert the complained of legal violations. The necessary competitive relationship exists due to the possibility of working as a lawyer nationwide.


4th
The required risk of repetition is indicated by the infringing behavior. Thus the right to dispose is given.


5
A reason for disposal is indicated for injunctive relief claims under competition law in accordance with Section 12 (2) UWG. There is thus a rebuttable actual presumption of urgency. At the request of the court, the applicant also made credible that he only became aware of the violations within the monthly deadline assumed by the case law and that there is therefore no self-refutation of the urgency by waiting too long.


6th
The application could only not be complied with in terms of threatening the defendant with a contractual penalty to be determined by the court. Rather, the respondent is to be threatened with the regulatory means provided for in Section 890 (1) of the ZPO in the event of an infringement of the prohibition issued.


7th
The court issued the temporary injunction due to urgency without an oral hearing, Section 937 (2) ZPO. Incidentally, a protective letter was not deposited.


8th
The decision on costs is based on Section 92 (2) (1) ZPO.


9
The amount in dispute was determined in accordance with Section 3 of the German Code of Civil Procedure (ZPO), whereby the information provided by the applicant was followed.

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