OGH on Data Protection Notices

Mar 24, 2023 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) held in its decision from 23 November 2022 that a data protection notice taken note of by consumers in a contract’s General Terms and Conditions does not constitute a mere piece of information, but is part of a contract.

The decision was based on a complaint filed by the Austrian Consumer Information Association (Verein für Konsumenteninformation). The defendant was an insurance company that used a document referred to as Data Protection Notice to inform their customers. In applying for insurance, customers had to confirm that they had taken note of the Notice. According to the plaintiff, some of the provisions therein were in breach of the General Data Protection Regulation. The plaintiff association therefore turned to the Vienna Commercial Court with a complaint demanding that the clauses in question be examined more closely and, if necessary, repealed. The Higher Regional Court dismissed the claim but allowed an appeal to the OGH.

The OGH ruled that the defendant's data protection notice was not just an information sheet without legal consequences. The fact that the data protection notice is not part of the general terms and conditions, but instead is a separate sheet of paper, does not contradict its character as a contract information tool; rather, its form depends on how the contract is worded. Consumers do not have to ‘agree’ to the data protection notice, but they must confirm in their application for insurance that they have ‘taken note’ of the data protection notice. In the end, this does not make any significant difference, since ‘taking note’ can also imply consent to the contents.

OGH 7 Ob 112/22d (23.11.2022)