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Decision of the Higher Regional Court of Frankfurt am Main on bundling of consents in sweepstakes

  • Germany
  • Privacy, data protection and cybersecurity


In its decision of 27. June 2019 (Ref. 6 U 6/19), the Higher Regional Court of Frankfurt am Main ruled that participation in a sweepstakes can be made dependent on participants giving their consent to receive future marketing via e-mail or calls. In addition, the court ruled that it is possible to obtain consent, that meets the requirements of the General Data Protection Regulation (GDPR), for the benefit of several companies. However, the marketing medium and, in particular, the range of products or services offered by the different businesses must be clearly identified.

Consent was voluntary

The court took a more relaxed view than the German data protection supervisory authorities regarding the requirement for a voluntary consent. It decided that a consent can be considered as voluntary, if it is provided without pressure. According to the court's assessment, the coupling of consent with participation in the sweepstakes does not result in any obligation to disclose one's data. In this way, each of the individuals concerned could decide for themselves whether they want to participate in the sweepstakes. However, the court did not refer to the general prohibition of coupling pursuant to Art. 7 (4) GDPR, which prohibits making the fulfilment of a contract dependent on the granting of consent, if the data protection consent is not compellingly necessary for performance of the contract.

Requirements for consent

The court also decided that a consent provided in the context of the participation in the sweepstakes can comply with the GDPR’s requirement to provide an unambiguous consent in an understandable form and using clear and simple language. To meet this obligation, the participant must be provided with clear information about the marketing medium(s) and, in particular, the range of products or services offered by the relevant companies.

This requirement can also be met if consent for marketing is obtained for the benefit of several organisations. However, the number of organisations must not be so high that the participant cannot reasonably be expected to understand who they are and what they do. In this case, the court decided that eight companies did not result in such uncertainties, so it was possible for the participant to provide their informed consent for the marketing.

With regard to the descriptions of the businesses that the consents are obtained for, the court decided that general descriptions like "advertising and marketing" do not indicate the type of products or services for which consent was given, while "electricity and gas" is a sufficient specification. In addition, in this context, the court stated that the lack of clarity with regard to one advertiser does not affect the validity of the consent given to another, named advertiser.

Double opt-in procedure not sufficient to prove consent for advertising calls

The court considered the so-called double opt-in procedure for consent in telephone advertising as not sufficient to prove that consent has been obtained to advertising calls. In contrast to the double opt-in procedure for advertising e-mails, there were "numerous, not improbable reasons" to provide a wrong telephone number. Therefore, in the opinion of the court, the advertiser bears the burden of proof that the relevant telephone number is attributable to the respective sweepstakes participant.

What should you do?

Although the court’s decision appears to offer some leeway for advertising companies, it remains to be seen whether other German courts will follow this decision. In the event of an in-depth examination of the requirements for consent, there is a risk of a deviating decision. Companies should therefore examine their use of consent in connection with sweepstakes and other promotions on a case by case basis.