OGH - 9Ob38/19g

Summary

The Austrian Supreme Court (OGH) ruled in case 9 Ob 38/19g that consent for secondary data use, as presented in Simply TV's terms of service, is generally not considered 'freely given' under the Data Protection Directive 95/46/EC. The consumer organization VKI challenged clauses related to data processing, arguing they were intransparent and that consent was not freely obtained.

Full text

Help OGH - 9Ob38/19g: Difference between revisions From GDPRhub Jump to:navigation, search ← Older editVisualWikitext Revision as of 09:49, 14 December 2023 view sourceAr (talk | contribs)Bureaucrats, Interface administrators, noContributionReport, Administrators2,246 editsm ← Older edit Latest revision as of 14:18, 9 July 2026 view source Sfl (talk | contribs)Bureaucrats, Interface administrators, noContributionReport, Administrators437 editsm Tag: Visual edit Line 37: Line 37: |EU_Law_Link_1=https://eur-lex.europa.eu/legal-content/DE/ALL/?uri=celex%3A32002L0058|EU_Law_Link_1=https://eur-lex.europa.eu/legal-content/DE/ALL/?uri=celex%3A32002L0058 |EU_Law_Name_2=Unfair Terms Directive 93/13/EEC|EU_Law_Name_2=Unfair Terms Directive 93/13/EEC |EU_Law_Link_2=https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A31993L0013|EU_Law_Link_2=https://eur-lex.europa.eu/eli/dir/1993/13/oj |EU_Law_Name_3=Data Protection Directive 95/46/EC|EU_Law_Name_3=Directive 95/46/EC |EU_Law_Link_3=https://eur-lex.europa.eu/legal-content/DE/ALL/?uri=celex%3A31995L0046|EU_Law_Link_3=https://eur-lex.europa.eu/legal-content/DE/ALL/?uri=celex%3A31995L0046 Latest revision as of 14:18, 9 July 2026 OGH - 9 Ob 38/19g Court: OGH (Austria) Jurisdiction: Austria Relevant Law: Article 4(11) GDPR Article 6(1)(a) GDPR Article 7(4) GDPR Article 13(2) ePrivacy Directive 2002/58/ECUnfair Terms Directive 93/13/EECDirective 95/46/EC Decided: 15.11.2019 Published: Parties: VKI Simply TV National Case Number/Name: 9 Ob 38/19g European Case Law Identifier: ECLI:AT:OGH0002:2019:0090OB00038.19G.0923.000 Appeal from: OLG Wien (Austria) Appeal to: Original Language(s): German Original Source: RIS (in German) Initial Contributor: n/a Austrian Supreme Court ("OGH") finds that consent to secondary use in terms of service is generally not "freely given" under Directive 95/46. Contents 1 English Summary 1.1 Facts 1.1.1 Clause 18 read as follows: 1.1.2 Clause 19 read as follows: 1.2 Dispute 1.2.1 On Clause 18 1.2.2 On Clause 19 1.3 Holding 1.3.1 On Clause 18 1.3.2 On Clause 19 2 Comment 3 Further Resources 4 English Machine Translation of the Decision English Summary Facts The Austrian consumer organization ("Verein für Konsumenteninformation", VKI) has sued the provider of encrypted digital terristrial TV in Austria ("Simply TV") under the Austrian implementation of the Unfair Terms Directive 93/13/EEC (§ 6 Konsumentenschutzgesetz - KSchG) because it allegedly used 29 illegal clauses in its Terms of Service. Two clauses (18 and 19) concern data processing. The other parts of the judgment are irrelevant for the purpose of this page. Clause 18 read as follows: "The personal data provided by the subscriber as well as data on the type and frequency of his use of the services provided by Simply TV shall be collected, stored, used by Simply TV - insofar as this is necessary for the processing of subscriptions, for the provision of customer services as well as for the invoicing of remuneration - and transmitted to commissioned companies for the purposes of order data processing pursuant to § 11 Data Protection Act 2000." Clause 19 read as follows: "Simply TV may send electronic messages (in particular e-mail, SMS) to the subscriber for the purpose of informing him of offers from Simply TV in the pay-TV sector which are similar to the packages and/or channels already subscribed to by the subscriber. Simply TV will only transmit such messages if the subscriber has provided Simply TV with the relevant contact details (in particular e-mail address, telephone number) as part of the subscription. The subscriber may object to the transmission of such messages at any time in writing (post, fax, e-mail: infoservice@s*****.at). The subscriber will be informed of his right of revocation at each transmission of such messages." Dispute On Clause 18 VKI claimed that the clause is intransparent, as the controller does not inform about (1) the concrete companies data is shared with, (2) the the fact that the data subject can withdraw his consent at any time and because (3) the data subject may get the false impression that the clause would generally allow to use personal data as describted in the clause during the entired contractual relationship. The controller claimed that there is no duty to name each recipient and that the processing of data was necessary to fullfil thee contract and for the best possible customer service. On Clause 19 VKI claimed that this clause violates the implementation of Article 13(2) of ePrivacy Directive 2002/58/EG in § 107 of the Austrian Telecommunications Act (TKG), as it does not allow to opt-out from direct marketing communications. The controller claimed that the clause explicitly refers to the right to object. Holding Both clauses were found to be invalid. On Clause 18 The Court joined the view of VKI that the limitation on processing that is necessary for certain purposes (if read in the grammatical meaning) is only limited to the controller, while there is no purpose limitation for sharing data with third parties. The clause would thereby allow to share any data for any purpose with any third party. This was frond to be unfair within the meaning of the Unfair Terms Directive 93/13/EEA. The court further held that the clause "for purposes of processing by the processor under § 11 Data Protection Act 2000" is ins transparent and not understandable to the average consumer. There was no need to reassess the issue under GDPR, as this clause was already unlawful under the Austrian implementation of Directive 95/46. On Clause 19 The Court joined the view of VKI and focused on the fact that objection to direct marketing messages under Article 13(2) of the ePrivacy Directive has to be possible "without any difficulty" ("problemlos"). In the case of text messages (SMS) a consumer has to switch to another form of communication, which is not "without any difficulty", especially when consumers are away from home. It agreed with the lower Courts that it is ins transparent that a possibility to object is not already presented at the time of signing the contract. Comment The Austrian Supreme Court has based the decision on the "most unfavorable" interpretation of the terms (as usual in unfair terms procedures), contrary to an interpretation in the light of consumer law in individual cases. The case was brought under Directive 95/46. It is remarkable that the Supreme Court held, that ready under Directive 95/46 consent that was required in Terms and Conditions cannot be seen as "freely given". It therefore explicitly refused to reassess the situation under the stricter rules on consent in the GDPR. Further Resources Share blogs or news articles here! English Machine Translation of the Decision The decision below is a machine translation of the original. Please refer to the German original for more details. tribunal: OGH decision date 23.09.2019 transaction number: 9Ob38/19g head The Supreme Court was established as a court of appeal by the President of the Senate of the Supreme Court, Dr. Hopf, as Chairman, and the Court Councillors of the Supreme Court, Hon.Prof. Dr. Dehn, Dr. Hargassner, Mag. Korn and Dr. Stefula in the case of the plaintiff V*****, represented by Kosesnik-Wehrle & Langer Rechtsanwälte KG in Vienna, against the defendant S*****, represented by Mag. Heinz Heher, Rechtsanwalt in Vienna, for omission (EUR 30,500) and publication of the judgment (5th Chamber of the Court of Justice, Vienna)500), on the appeals of both parties against the judgment of the Vienna Higher Regional Court as Court of Appeal of 7 February 2019, GZ 133 R 113/18t-17, which partially confirmed and partially amended the judgment of the Vienna Commercial Court of 26 July 2018, GZ 29 Cg 31/17d-11: verdict The revisions of both parties shall be followed in part. The contested decision is amended so as to amend the action in accordance with Clauses 5, 17 and 18. The period within which the defendant is obligated to re

Indicators of Compromise

• url — https://eur-lex.europa.eu/legal-content/DE/ALL/?uri=celex%3A32002L0058
• url — https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A31993L0013
• url — https://eur-lex.europa.eu/legal-content/DE/ALL/?uri=celex%3A31995L0046
• email — infoservice@s*****.at

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