Decision of the Federal Court of Justice: opt-out consent to postal advertising

On November 11, 2009, the German Federal Court of Justice handed down a judgment on the privacy aspects of the ”HappyDigits” bonus programme. The court held that an opt-out consent by participants relating to postal advertising that was included in the registration form for the programme is compliant with applicable German data protection law provisions. In this respect, the court applied Sec. 4 of the BDSG, according to which consent also can be given simultaneously with other declarations (here, the participation in the bonus programme) in case special prominence is given to the declaration of consent (e.g. by printing in bold). Interestingly, the court also stated clearly that, in this respect, the September 1, 2009 amendment of the BDSG has not brought about any changes to the law. Rather, also the recently introduced Sec. 28 paragraph 3a BDSG shall provide for a respective opt-out solution. It must be borne in mind however, that this is only true for postal advertising. With respect to advertising via telephone, telefax, e-mail, or other electronic means, an opt-in consent is generally required under German law, as the Federal Court of Justice had earlier declared in its ruling dated July 16, 2008 on the “Payback” bonus programme.