Germany, District Court Frankfurt, 10 June 2016 2-03 O 364/15

Identification of the case

• TMG (Telemediengesetz) § 13 (1); UWG (Gesetz gegen unlauteren Wettbewerb) §§ 3a, 5a

Summary of the case

The plaintiff is the consumer protection association of North Rhine-Westphalia. It acquired a ‘smart TV’ produced by the defendant Samsung Electronics. These smart TVs feature the user surface ‘Smart Hub’ where the consumer can access third party applications, but also upload their own movies and receive recommendations regarding the TV programm. In the assembly instructions, there was neither reference to the terms and conditions nor to the privacy policy. The terms and conditions reps. the privacy policy could be accessed after the assembly of the TV. During the first use of the TV, the TV uses the ip-address to download and present the terms and conditions as well as the appropriate privacy policy according to the region of the plaintiff. The plaintiff can then read the terms and conditions and the privacy policy displayed without sub-sections or headings and then issue a blanket approval regarding them. The plaintiff complains that the HbbTV function was activated without the consent of the consumer and that this function transfers data to the producer without previously informing or obtaining consent of the consumer.

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

Violation of information duties (civil injunction).

Addressing the points raised by the plaintiff, the district court Frankfurt concludes that there is no duty for the defendant to inform the consumer about the activated HbbTV function and the possible transfer of information. While this function transmits IP-adresses, §13(1) TMG is aimed at service providers who use data collected during the provision of the service. The defendant is not in a position where she has active knowledge of the data or the authority to dispose about the collected data, hence, §13(1) TMG is not applicable to the defendant.

While the district court Frankfurt addresses the points raised by the plaintiff, its focus is on controlling the terms and conditions, including therein also the privacy policy without explicit discussion. The district court raises this issue on its own motion and decides that the privacy policy lacks transparency. Due to its length and unclear presentation (56 TV pages in running text without sections or headings), the district court finds that the privacy policy is not a suitable basis for agreeing to the collection and use of data. Furthermore, the court does not deem the phrasing of the privacy policy suitable. The provider has to inform the consumer at the beginning of the use of the product, regarding the form, extent and purpose of collecting and using the data in an understandable manner. Thereby, it is necessary to inform the consumer of which kind of data is collected. By using phrases including ‘for example’ and ‘possibly’ regarding the used data, the provider does not present an exhaustive list of what kind of data is collected and the consumer cannot validly agree.

Additional notes on the decision

The decision by the district court was dismissed by the appeal court for deviating from the plaintiff’s original application and formulating its own prohibition. While the plaintiff focused on the privacy policy of the defendant, the district court analysed the terms and conditions of the defendant which were not included in the application for the injuction. (OLG Frankfurt 6 U 141/16 (05/19/17))