Privacy and Competition
In the case at hand, the Higher Regional Court of Hamburg—explicitly dissenting from the Higher Regional Court of Berlin’s position—argued that section 13(1) of the TMG is a provision also intended to regulate market behavior in the interest of competitors because the provision implements the transparency and information requirements of article 10 of the EU Data Protection Directive into German law. The EU Data Protection Directive again is not only intended to protect the individuals’ right to privacy with regard to the processing of personal data but also to ensure the free movement of such data within the EU (recitals 6, 7 and 8 of the Directive). Therefore, section 13(1) of the TMG is also intended to protect competitive activities of market participants by providing the same competitive conditions when collecting, processing and using personal data.
The application of competition law can result in the issuance of warning letters and injunctive reliefs as well as claims for rendering of accounts and damages by competitors or consumer protection organizations.
According to the Higher Regional Court of Hamburg, German data privacy law is also applicable to websites operated by non-EU companies, if personal data is collected, processed or used inside the country, whether or not the controller makes use of equipment situated on the territory of Federal Republic of Germany (decision dated 2 August 2011, case number 7 U 134/10). Therefore, the recent judgment also affects companies located outside the EU.