Paying with Data: Consumer Protection Centre loses before the Higher Regional Court (OLG) Stuttgart – "Lidl Plus" may continue to be called free of charge.

The Higher Regional Court (OLG) Stuttgart has decided that LIDL Plus may be described as free of charge despite users paying with their data for participation.

Price indications in distance selling and "paying with data"

In competition and consumer protection law, the following applies:Enterprises must inform consumers clearly and comprehensibly about the total price, if they offer goods or services in distance selling. This obligation arises from § 312d Abs. 1 BGB i.V.m. Art. 246a § 1 Abs. 1 Nr. 5 EGBGB. Since the introduction of § 312 Abs. 1a BGB, the so-called"paying with data" is also taken into account. This refers to the provision of personal data by the consumer instead of a monetary payment.

Dispute exists, however, as to whether personal data must legally actually be treated like a "price". Are enterprises permitted to advertise their offers as "free of charge" if users simultaneously disclose their data? Precisely this question was to be decided by theOLG Stuttgart in the case of the loyalty programmeLidl Plus.

What the dispute was about: Consumer Protection Centre against Lidl

The defendant, Lidl Stiftung & Co. KG, operates the benefits programme"Lidl Plus", in which registered customers receive personalised offers, discounts and services via an app. To register, participants mustprovide personal data such as name, date of birth, telephone number and e-mail address.

The terms and conditions of participation contained the notice:"Participation in Lidl Plus is free of charge." At the same time, users were informed in detail in a separate section about the processing of their data for marketing and analysis purposes.

A consumer association objected to this arrangement. It argued that the provision of personal data constituted aconsideration and thus a price. Lidl should have expressly stated the data processing as a price. Furthermore, advertising as "free of charge" was misleading.

The decision of the Higher Regional Court (OLG) Stuttgart

The Higher Regional Court (OLG) Stuttgart (Urteil vom 23.09.2025 – 6 UKl 2/25) dismissed the action. According to the Senate, the following applies:

• Not a price in the legal sense: The term "price" in German distance selling law as well as in European consumer law refers exclusively to monetary payments.The provision of personal data is not a price, but falls under the information obligations of the GDPR.
• No obligation to state the price: Lidl was therefore not obliged to declare the provision of data as a "total price" or consideration. There is no obligation to designate data as a price.
• No misleading nature of "free of charge": Since consumers do not have to pay money for the use and the data processing is explained transparently in the terms and conditions of participation, the designation "free of charge" is legally permissible. In the case of paying with data, there is thus no deception concerning hidden costs.

The court particularly emphasises that the European legislature deliberately made adistinction between monetary payments and the provision of data. Comprehensive protection of consumers is ensured by theGeneral Data Protection Regulation (GDPR).

Significance for practice

The judgment is of considerable significance for all enterprises thatbuild digital business models on data utilisation and rely on paying with data:

• Providers of digital services may continue to advertise their services as "free of charge" as long as no monetary payment is required and the data processing is presented transparently in accordance with Articles 13, 14 GDPR.
• Consumer associations currently cannot successfully challenge "paying with data" via distance selling law. The legal basis for this would only be an explicit statutory new regulation.
• Legal certainty for enterprises: The Higher Regional Court (OLG) makes clear that"free of charge" is not misleading if data are collected but are explained comprehensibly in the terms and conditions of participation.

At the same time, the question remains contentious:The revision was granted due to fundamental importanceapproved. This would allow the Bundesgerichtshof to clarify the legal position in the coming years!

Our Recommendation

Companies operating digital services or bonus programmes should note the following:

• Create transparency: Describe clearly and comprehensibly which data is collected and how it is processed.
• Fulfil data protection obligations: The legal requirements arise primarily from data protection law, not from distance selling law.
• "Free" remains permitted: As long as no money is charged, you may generally describe your offer as free of charge – even if data processing takes place. This applies at least according to the view of the OLG Stuttgart and subject to final clarification by the BGH. Corresponding slogans should nevertheless be reviewed regularly.

Conclusion: The judgment strengthens legal certainty for digital business models. Nevertheless, the topic of "paying with data" remains a politically and legally hotly debated field. Companies should therefore have their terms and conditions and data protection notices regularly reviewed by lawyers through the experts in data protection law and competition law at AVANTCORE Rechtsanwälte in Stuttgart in order to prevent cease-and-desist letters and legal disputes.