By decision of October 25, 2021 ( Higher Regional Court of Hamm, decision of October 25, 2021 – Ref. No.: 18 U 110/21 ), the Higher Regional Court of Hamm ruled that an address trading contract concerning the contact details of property owners willing to sell is invalid if the opt-ins granted violate competition law and data protection regulations opt-ins is void.
Plaintiff demands payment from acquisition agreement for sold opt-ins opt-ins is void
The background to the decision was the plaintiff’s business model. Which consisted of selling so-called opt-ins to real estate agents via its website. Opt-ins in this context represent (supposed) permission for real. Estate agents to make phone calls to enable them to contact property owners. In the present case, singapore business fax list a real estate agent terminated such. An acquisition agreement without notice after a property owner complained about the unwan contact. The real estate agent also refused to pay the invoice issued. Whereupon the contact agent sued her for payment of the agreed amount. The defendant, in turn, argued that the entire acquisition agreement was void because it violated the Unfair Competition Act (UWG) and the GDPR.
OLG Hamm: Opt-ins violate competition and data protection regulations
After the Regional Court of Hagen had already dismissed the contact broker’s lawsuit due to lack of prospects of success. The Higher Regional Court of Hamm also followed the defendant’s. View and dismissed the appeal. The court justified its appeal by arguing that the contact was made in violation of Section 7 (2) Nos. 2 and 3 of . Unfair Competition Act (UWG). With regard to the opt-ins obtain, uno development methodology there was a specific. Violation of Section 7 (2) No. 2 of the UWG, as there was no express consent from the property owners. The plaintiff could not rely on the data protection provisions of the relevant real estate portals from which she obtained the contact broker data. It could not be inferred from the clauses therein that the advertisers had given effective, further consent, which also included the use of the data for contact brokerage. The data protection notices cannot replace the required consent of the respective user. In this respect, the disclosure of the data to the broker, due to the lack of a legal basis, also constituted a violation of the GDPR.
Invalidity of the consent results in the invalidity of the entire agreement
According to the Higher Regional Court of Hamm, the violation of the provisions of the Unfair Competition Act (UWG) and the GDPR renders the entire acquisition agreement void under Section 134 of the German Civil Code (BGB). It is therefore irrelevant whether the invalidity of the obligation to obtain opt-ins under Section 139 of the email data German Civil Code (BGB) alone renders the agreement entirely void or whether the severability clause contradicts this. As a result, the plaintiff has no claim to payment under the acquisition agreement. The plaintiff’s subsequent appeal was finally dismissed by the Higher Regional Court of Hamm a few weeks later ( Higher Regional Court of Hamm, decision of December 23, 2021 – Ref. No.: 18 U 110/21 ).