On June 27, 2019, the High Court of Frankfurt decided that a consent for data processing tied to a consent for receiving advertising can be considered as freely given under the GDPR.
The case concerned an electricity company that relied on consent obtained by another company to advertise its products and services to the claimant. The claimant’s consent had been obtained in connection with his participation in a sweepstakes contest. In order for the claimant to participate in the contest, he had to consent to receive advertising from partners of the sweepstakes company, including the electricity company. The claimant was provided with a list of the eight companies with whom his data would be shared for advertising purposes.
The court was asked to decide on the validity of the consent under the GDPR, and, in particular, whether the consent met the GDPR requirements of a “freely given” and “specific” consent.
In line with previous case law, the court decided that bundling consent for advertising with the participation in a sweepstakes contest does not prevent it from being “freely given”. According to the court, “freely given” consent is a consent that is given without “coercion” or “pressure”. The court decided that enticing a customer with a promise of a discount or the participation in a sweepstakes contest in exchange for the consent to process his data for advertising does not amount to such coercion or pressure. According to the court, “a consumer may and should decide himself or herself if the participation in the sweepstakes is worth his or her data”.
The court also decided that the consent satisfied the GDPR’s specificity requirement because the sweepstakes company had indicated that the defendant would use the data for marketing and advertising in relation to “gas and electricity”. The court highlighted that had the types of products or services not been indicated, then the consent could not have been considered “specific”.
The decision is in line with the Opinion of the Advocate General in the Planet 49 case – still pending before the Court of Justice of the European Union (see our blog post here). In this case, users had to consent to being contacted by commercial partners of a lottery organizer in order to participate in the lottery. The Advocate General was of the opinion that this is not a prohibited bundling of consent per Art. 7(4) of the GDPR.