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Tech & Sourcing @ Morgan Lewis

TECHNOLOGY, OUTSOURCING, AND COMMERCIAL TRANSACTIONS
NEWS FOR LAWYERS AND SOURCING PROFESSIONALS

The German Conference of DPAs (the DSK) has released new (legally non-binding) detailed Guidelines dated February 18, 2022 with respect to direct marketing in Germany.

With the DSK as their forum, the federal and state data protection authorities in Germany have adopted the Guidelines jointly to summarize the key principles of the GDPR for direct marketing. The Guidelines are not legally binding. The DSK not only evaluated the GDPR rules, but also looked at Section 7 of the German Unfair Competition Act (UWG), which contains Germany-specific rules for when existing customers can be contacted for marketing purposes.

Section 7 UWG implements various EU Directives. Section 7 (1) UWG states that a commercial practice which constitutes an unacceptable nuisance to a market participant is illegal, particularly in cases where it is apparent that the solicited market participant does not want this advertising. In other words, sending marketing materials to existing customers is only allowed if it does not infringe with Section 7 UWG. However, Section 7 UWG does not exclude a consumer receiving marketing materials due to their informed and freely revocable consent under the consent provisions of the GDPR. The following is a summary of the electronic marketing rules in the new Guidelines:

  • The DSK acknowledges that, in certain cases, direct marketing measures can indeed be based on Article 6 (1) (f) GDPR – legitimate interests; however, the balancing of the interest must be thoroughly documented and must not infringe upon Section 7 UWG with its rules for existing customers.
  • Excerpts of specific guidance on electronic advertising (via email) is as follows:
    • Existing customers/clients: “If e-mail addresses have been collected directly from the data subjects in the context of a contractual relationship (existing customers), the data subject's interests worthy of protection under Article 6 (1) (1) (f) GDPR do not prevail if the requirements for electronic advertising contained in Section 7 (3) UWG for electronic advertisement are complied with. The purpose of the e-mail advertising must be transparently explained to the data subjects at the time of data collection – Art. 13 (1) (c) GDPR.”
    • New purposes: “If personal data is to be used for advertising purposes that was not originally collected (also) for advertising purposes, the provisions of Art. 6 (4) GDPR (change of purpose) must also be observed. In order to find out whether the advertising purpose is compatible with the original purpose, data controllers must carry out a so-called compatibility check, unless there is consent to the change of the purpose.”
    • Business cards: “Business cards left by data subjects at trade fairs or other events expressly for the purpose of sending information or making further business contact may in principle constitute a valid consent within the meaning of Article 4 No. 11 GDPR if, as a result of the circumstances of the individual case, it is possible for the controller to prove that consent has been given.”
    • “For the electronic declaration of consent, the double opt-in procedure is required to verify the declaration of intent of the data subject, whereby the verification requirements of the German High Court - BGH re [interpretation of] the UWG (ruling of February 10, 2011) must be taken into account in the documentation process.”
    • “The practice of data controllers collecting postal address data from third parties and processing it for the purpose of direct from third parties and process it for direct marketing purposes (so-called "friendship marketing") is regularly precluded by the principles of fair and transparent processing of personal data pursuant to Art. 5(1)(a), Art. 12(1) GDPR.”
    • “Article 21(4) GDPR requires that the data subject must be informed in an understandable form, separate from other information, of his or her right to object to the processing of his or her personal data for direct marketing purposes, including any related profiling. For reasons of proof, it is advisable to include the reference to the right of the right to object should be included in every advertising mailing.”