Germany, District Court Berlin, 19 November 2013 15 O 402/12

Identification of the case

• BGB §§ 305 (1) 1, (2) Nr. 1, 307 (1), (2), 314, 242, 516; TMG §§ 12, 13, 15; BDSG §§ 4, 4a, 28, 35; UWG § 7

• Art. 5 Nr. 3 Brussels-I-Regulation

Summary of the case

The defendant offers numerous services on her website, i.a. a well-known internet search machine, specialised search engines for images, maps, books, movies, e-mail and calendar services. Many of these services can be used without registration and free of charge, whereas some services (i.a. the email service) require registration and some are chargeable.

The plaintiff, a registered consumer protection association, first successfully requested an injunction regarding the terms of use and its privacy policy against the defendant in 2008 (LG Hamburg, judgment of 19.05.2011 - 10 U 32/09). In the current case, the plaintiff requests an injunction against the defendant’s updated Terms of Use and privacy policy (used on the website in July 2012).

• Civil judicial enforcement
• Collective enforcement - Consumer association's action

Injunction against use of terms of use.

The focus of the district court Berlin is on three main issues: whether German courts have jurisdiction resp. whether German law is applicable, the extent of the possibility to control privacy policies and terms of services, and whether certain clauses of the terms and conditions are void.

Firstly, it decides that German courts have jurisdiction regarding the defendant’s terms of use against consumers, although the defendant is located in Ireland. The jurisdiction arises from the fact that the plaintiff requests an injunction against the supposedly illegal clauses in the terms of use which also affect German consumers. Furthermore, the court decides that German law is applicable as the law of the domicile of the consumers’ domicile is applicable.

Secondly, the court decides that the defendant’s terms of use and privacy policy constitute terms and conditions and are, thus, subject to the same level of control. It is decisive that the defendant’s conditions of contract are pre-formulated for a multitude of contracts and stipulated in a one-sided manner. Adopting the least consumer friendly interpretation of the website, the privacy policy is included in the analysis as it is impossible to sign up for the defendant’s services without consenting to it and the terms of use through a single click-wrapping link. Consequently, the terms of use and the privacy policy constitute terms and conditions. In addition, the defendant’s services do not constitute ‘gifts’ but a reciprocal relationship as the defendant makes use of collected information in exchange for the offered services.

Thirdly, the district court Berlin determines several clauses of the defendant’s terms and conditions void. Regarding the terms and conditions, the court determines that the clauses are worded too broadly and that some clauses are too one-sided. For example, it is unclear to the consumer how the defendant examines the uploaded content and what constitutes infringements, because the clauses are worded too broadly and do not contain restrictions regarding conduct entailing criminal responsibility. The defendant also assumes continuing obligations although it needs to be possible to terminate the relationship in case of misconduct of either party. The privacy policy is similarly void as the consumer cannot understand from it in which ways his data is processed. Lastly, the clauses regarding ‘android market’ are illegal as far as the defendant is authorized to access the devices owned by the consumer, to unilaterally change the conditions of the contract and to terminate the use of services. The court stresses that thereby it does not matter whether the clauses are currently in use. Due to the abstract danger of re-offending, an official court injunction is necessary.

Additional notes on the decision

Regulation (EU) 2016/679 entailed a revision of the Bundesdatenschutzgesetz (BDSG, Federal Data Protection Act) and the Datenschutzgesetz (Datenschutzgesetz). According to the new § 1 BDSG, the act is applicable to private relationships when data is processed or used within the German borders.

The impact of the case on national case law is still unclear as there is a split in German courts regarding the applicability of German law. Unlike the district court Berlin, the High Administrative Court Schleswig held regarding Facebook (which is also established in Ireland) that Irish law is applicable. (OVG Schleswig 4 MB 11/13, 22.04.2013).

The Court of Appeal in Berlin agrees with the district court in all counts (KG, 21.03.2019 - 23 U 268/13). It stresses once more that German courts have jurisdiction according to art. 5 nr. 3 Brussel-I-Regulation.