AG Hamburg-Bergedorf - 410d C 197/20
| AG Hamburg-Bergedorf - 410d C 197/20 | |
|---|---|
 | |
| Court: | AG Hamburg-Bergedorf (Germany) |
| Jurisdiction: | Germany |
| Relevant Law: | Article 6(1) GDPR Article 82(1) GDPR Article 83(2) GDPR Article 2(a) Directive 2006/114 German Civil Code |
| Decided: | 07.12.2020 |
| Published: | |
| Parties: | |
| National Case Number/Name: | 410d C 197/20 |
| European Case Law Identifier: | |
| Appeal from: | |
| Appeal to: | Unknown |
| Original Language(s): | German |
| Original Source: | Landesrecht-Hamburg (in German) |
| Initial Contributor: | gauravpathak |
The Local Court Hamburg-Bergedorf restrained a website offering legal services from contacting a lawyer through email for advertising purposes without her express consent as it violates Article 6(1) GDPR.
English Summary
Facts
The data subject is a lawyer and the controller is a website named Beratungsflat. The lawyer received an email from Beratungsflat and the email said that Beratungsflat offered legal advice by lawyers by telephone via its website, www.beratungsflat.de. The email also stated that Beratungsflat cooperated with lawyers, and they were remunerated by it for this telephonic advice. At the end of the e-mail, Beratungsflat asked whether the lawyer would be interested in offering legal advice by telephone via Beratungsflat's website and invited her to contact Beratungsflat if she was interested.
Beratungsflat had obtained the email address of the lawyer from the contact page of her law-firm's website. The contact page of the law firm's website also contained a marked notice that the processing or use of data for purposes of advertising or market or opinion research by any means of communication is objected to and that no advertising mailings or calls are desired. In normal text, the law firm's website further stated that the use of contact data published in the imprint or comparable information, including e-mail addresses, by third parties for the purpose of sending information not expressly requested is not permitted, and legal action is reserved.
On the day the email in question was received, the lawyer sent a cease and desist notice to Beratungsflat and claimed damages of €500. Subsequently, Beratungsflat refused to issue the cease-and-desist declaration and to make the payment.
Accordingly, the lawyer approached the Local Court Hamburg-Bergedorf seeking a direction prohibiting Beratungsflat from contacting and/or having contact made with her by email for advertising purposes without her express consent, on pain of an orderly fine of up to €250,000 for each case of culpable infringement, or alternatively up to six months' imprisonment, with the orderly imprisonment to be carried out for the Beratungsflat on the Beratungsflat's managing directors. The lawyer also sought an order directing Beratungsflat to pay her reasonable non-material damages, as decided by the Court, but which shall not be less than €500, together with interest.
Before the Court, Beratungsflat claimed that the email sent by it was not advertising, but an everyday request for legal advice. Furthermore, the lawyer had consented to being contacted by publishing the email address on the law firm's website, especially since the request for legal advice was part of the lawyer's usual activity. Beratungsflat submitted that the sending of the email did not constitute a violation of the GDPR and there was there was no material damage caused to the lawyer due to a single e-mail.
Holding
The Local Court Hamburg-Bergedorf held that sending e-mails with advertising content only once to a lawyer who had to read his e-mail carefully for professional reasons constituted an interference with the established and exercised business. The email sent by Beratungsflat constituted advertising as it was a statement made in the course of a trade, business, craft or profession with the aim of promoting the sale of goods or the provision of services. Beratungsflat's email was not seeking any legal advice but was an offer to the lawyer to join Beratungsflat's platform.
The lawyer at no point consented to the email being sent. There was no prior contact between the lawyer and Beratungsflat and there was no express consent. Moreover, Beratungsflat could not even assume consent, even as the email address was publicly available, because the lawyer explicitly objected to being contacted by advertising email.
The sending of the email despite the lawyer's express objection to advertising violated Article 6 (1) GDPR. However, this violation alone was not sufficient to justify a claim for damages. Pursuant to Article 82(1) GDPR, a claim for damages only exists if material or non-material damage has been caused by the infringement, which should be as per examples listed in Recital 75 GDPR.
The lawyer claimed to have suffered non-material damage due to the fact that she was harassed by the one-time unlawful use of her data. A concrete impairment that went beyond the perceived harassment itself, i.e. the sending of the e-mail, was not to be seen in this. Thus, there was no significant damage to the lawyer beyond the infringement.
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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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