On February 18, 2014, the Frankfurt am Main Regional Court issued a ruling addressing the use of opt-out notices for web analytics tools. The case concerned Piwik web analytics software and its “AnonymizeIP” function. The court held that website users must be informed clearly about their right to object to the creation of pseudonymized usage profiles. This information must be provided when a user first visits the website (e.g., via a pop-up or highlighted/linked wording on the first page) and must be accessible at all times (e.g., via a privacy notice).
Although the website provider in question had enabled an “anonymizing” function in Piwik, the court found that pseudonymized usage profiles were being created. To make that determination, the court drew on the Schleswig-Holstein data protection authority’s (“DPA’s”) detailed analysis of Piwik, as well as the federal German DPA’s formal resolution on web analytics.
Notably, the case was brought by a competitor of the website provider who argued that the website provider breached Germany’s Unfair Competition Act. This case, along with the Bavarian DPA’s reports on Adobe Analytics and Google Analytics, illustrates that web analytics continue to be a hot topic in Germany. The case also represents a broader trend in Germany of treating violations of data protection law as breaches of unfair competition law.