LG Berlin; 2014-10-28; 16 O 60/13
Decision by national courts in the field of European Union law — ECLI:DE:LGBE:2014:1028.16O60.13.0A
Date: 2014-10-28
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82014DE1028(51)_ENG_SUMJURE
JURE summary
JURE summary
An umbrella association representing the interests of 16 consumer centres of German federal states and other consumer and social-oriented organisations (hereinafter ‘the plaintiff’) filled an action in which it sought injunctive relief against the operator of the social network Facebook (hereinafter ‘the defendant’).
The defendant had made third-party games available to users free of charge via a link, whereby clicking on the ‘Play Now’ button on the website www.facebook.com also led to a transfer of users’ personal data. There was no indication as to the purpose for which the benefiting game provider uses the transferred data.
The Landgericht Berlin (hereinafter ‘the Court of First Instance’) has international jurisdiction under Article 5(1) of the Brussels I Regulation (1) since the infringement also occurred in Berlin.
The defendant argued that the plaintiff was not entitled to injunctive relief simply because there was no obligation to clarify all effects of the declaration of consent. Neither the conditions for harassment by unsolicited advertising pursuant to Article 7 of the UWG (2) nor for an unfair act pursuant to Article 4(11) of the UWG were fulfilled.
The action was justified and successful. According to Article 6(3)(a) of the Rome II Regulation (3), German law applies to this case.
The transfer of data to the game providers violates Article 4(1) of the BDSG (4). Personal data may be processed and used as far as the BDSH allows it or the person concerned has given his/her consent. Neither of these conditions was fulfilled. Effective consent means a free decision of the person concerned based on the purpose of processing and the use of the data communicated to him/her. The user who plays a free game does not have any control over the whereabouts and use of his/her data.
In addition to personal data, the entitlement to injunction relief also concerns the posting of status messages, photos, and other information related to the free game. The link to the general terms and conditions and data protection regulations of the game provider is not equivalent to the user’s consent.
(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Gesetz vom 3. Juli 2004 gegen den unlauteren Wettbewerb (Unfair Competition Act).
(3) Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II).
(4) Bundesdatenschutzgesetz vom 20. Dezember 1990 (Federal Data Protection Act).