IDO Association
loses due to GDPR
cease and desist letter.
IDO Association
loses due to GDPR
cease and desist letter.
from
The IDO Association is known for its cease and desist letters under competition law, especially against small and medium-sized businesses. Among other things, the IDO Association recently issued a cease and desist letter for a missing/deficient privacy policy. We have now successfully defended against the IDO Association’s claims before the Stuttgart Regional Court.
Car accessories on eBay
Our client is a supplier of automotive accessories who offered his products on eBay, among other places. There was no data protection declaration on his offers in July 2018, which prompted the IDO Association to issue a cease and desist letter to our client.
We rejected the cease and desist letter, whereupon the IDO Association filed an action for injunctive relief with Stuttgart Regional Court.
Decision of the Stuttgart Regional Court on the IDO Association’s lawsuit
The Stuttgart Regional Court dismissed the action in its judgment of 20.05.2019 (Ref. 35 O 68/18 KfH).
The IDO Association based its action for injunctive relief on the German provisions of the TMG and, in the alternative, the GDPR.
The regional court dismissed the claim. The provisions of the TMG on which the IDO Association relied were no longer applicable since the GDPR came into force. The GDPR supersedes the national provisions of the TMG, which is why claims based on a breach of the TMG are excluded.
However, the regional court also rejected claims for breach of the GDPR. According to the court, the question of whether sanctions in the GDPR are conclusive is disputed in case law. However, the court agreed with the view that the provisions of the GDPR are exhaustive.
This is supported by the fact that the GDPR contains detailed regulations on sanctions. It is true that the German legislator was able to authorize competitors and associations such as the IDO Association to enforce the claims. However, the German legislator did not make use of this option. This applies both to claims under the UWG and the UKlaG.
Conclusion
In the opinion of Stuttgart Regional Court, data protection violations can therefore neither be asserted under competition law by competitors nor by associations under the UKlaG.
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