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Make participation in the competition dependent on advertising?

The Higher Regional Court of Frankfurt am Main recently ruled that in a case where participation in a competition is subject to consent to future e-mail advertising, a GDPR-compliant declaration of consent may be available.

Such a declaration of consent would still be sufficiently transparent even if eight co-sponsors were on the sponsors’ list within the framework of the consent list.

In doing so, the General Court had to deal with the definition of Article 4(11) GDPR, according to which a consent, any voluntary statement of inthednoty and unequivocal form of a declaration or other unambiguous affirmative action by which the data subject indicates that he or she is entitled to a statement of intent. consent to the processing of personal data concerning them.

The Court of Voluntary Action also dealt with:

‘Voluntary’ is synonymous with ‘without compulsion’ iSd of Article 2 lit. h RL 95/46/EC (both times “freely”). The person concerned must therefore have a real or free choice and must therefore be able to refuse or withdraw consent without suffering any disadvantages. In particular, no pressure must be exerted on the person concerned. A mere lure by promises of a perk, such as – as here – a participation in a competition, is not enough […]. According to the case law of the Senate, a voluntary event does not preclude the declaration of consent from being linked to participation in a competition. The consumer can and must decide for himself whether participation is “worth” disclosing his data.

 

Nevertheless, such declarations and information on sweepstakes should not be produced alone. There is still a threat of traps and therefore paid warnings. The user must always be able to see how and for what purposes his data is processed, which is why it must be clearly indicated for which individual advertising measures are given consent.

As far as product reference is concerned, general descriptions pre-formulated by the advertiser, such as the fact that consent extends to ‘financial services of all kinds’, are not sufficient.

Unfortunately, the court still does not tell when there are too many advertising partners, which is why handing over data to an agency partner, for example, would be very problematic. In addition, the judgment on the problem of a possible ban on coupling(see also this article) does not provide any further findings.

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The overall declaration must therefore be voluntary and transparent. However, this facilitates the offer of sweepstakes in the GDPR timekeeper, which is why the judgment (Az.: 6 U 6/19) offers a little legal certainty.

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Written by Marian Härtel

Marian Härtel specializes in the areas of competition law, copyright law and IT/IP law and specializes in computer games, sports, marketing and streamers/influencers. He supports start-ups in their development, assists them with all legal problems and supports them in business development.

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