Since I again advised a client last week on the subject of data protection in his online shop, the question of admonisherability also arose. I have already published several articles on this topic on my blog, but I would also like to draw your attention once again to an interesting decision by the Magdeburg Regional Court, which I discussed here in January. In fact, the ruling concerned the question of whether over-the-counter drugs can be sold through Amazon. However, the decision also concerned questions of data protection law.
The question of whether a breach of the General Data Protection Regulation can be admonished by a competitor currently divides the legal landscape of opinion, including the courts. While the Regional Court of Würzburg and the Higher Regional Court of Hamburg have ruled that a violation of the GDPR can be admonished (in the case of the district court of Würzburg it had even met a fellow lawyer), the regional court, for example, denied that it had been Bochum and the Wiesbaden Regional Court made such a claim. In that judgment, the Landgericht Magdeburg also agreed with this legal opinion, arguing that the GDPR would provide a final catalogue of sanctions and that enforcement claims would be assigned to the data protection authorities. Be. Art. 2 GDPR is a final rule in that respect.
However, this legal chaos does not help much, since, where admissible, in the context of an action, warnings are currently likely to simply be sought by the court that injunctions by competitors are admissible. To the best of my knowledge, the current Federal Council initiative for the“Draft Act on the Adaptation of Civil Law
Provisions to the General Data Protection Regulation” does not really have a foreseeable timetable either. In addition, as the authorities are also becoming more and more active, there should be no “at risk” in matters of data protection.
Although it is really to be favoured for data protection authorities, which are more likely to be able to act with a sense of proportion, take over enforcement, the risk of a warning is by no means off the table. This also applies because, apart from the Higher Regional Court of Hamburg (with a perfectly questionable reasoning), there is no higher judicial decision and regional courts are not bound by the decisions of other regional courts; not even the decision of the Higher Regional Court of Hamburg. The Magdeburg District Court even openly criticises the OLG Hamburg.
