Data protection declaration in contact form?

Is a data protection declaration required for contact forms on the internet, and does the failure to provide one constitute an unfair competition violation? The Higher Regional Court of Cologne (OLG Köln) had to decide whether a person seeking contact must be able to recognise what the personal data entered by them in the form will be used for and how long such data will be stored.

In a dispute between two tax advisory firms, they are in disagreement over data protection notification obligations relating to a contact form offered by one of the firms on its website.

The competitor was of the opinion that a person seeking contact must be able to recognise what the data entered by them in the form will be used for and how long his personal data will be stored. Furthermore, clarification must be provided that he may object to use after release.

Court decision

By judgment of 11.03.2016 – Az. 6 U 121/15 – the Higher Regional Court of Cologne (OLG Köln) has decided that a missing data protection declaration in an online contact form constitutes a reprehensible unfair competition violation.

The data protection provisions of the Telemediengesetz are also rules governing market conduct with consumer protection effects. Accordingly, corresponding violations are also unfair competition violations.

The absence of the corresponding information is capable of significantly impairing the interests of consumers and competitors. It is at least possible that a consumer might be deterred by a clearly given notice regarding the storage and use of personal data from filling out the contact form, or might be deterred by the absence of such a notice from revoking a consent once given.

Conclusion

Anyone who provides a person seeking contact with an online contact form must provide them with a data protection declaration which informs them what will happen to their personal data. If these notification obligations are absent, this constitutes an unfair competition violation.

However, this has not yet been clarified by the Federal Court of Justice (BGH), so that the Federal Court of Justice (BGH) could still revise the decision of the Higher Regional Court of Cologne (OLG Köln).