OGH Takes a Look at Sky TV’s GTC Clauses

Jul 28, 2023 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has overturned inadmissible terms and conditions of Sky Österreich GmbH because a specific clause addressing  direct advertising was non-transparent and unfairly disadvantageous to consumers.

The Austrian Association for Consumer Information (Verein für Konsumenteninformation) had filed a complaint against Sky Österreich Fernsehen GmbH (hereinafter Sky). Sky had announced to its customers that it would compare personal data against that of the Austrian Postal Service. In May 2020, Sky customers received a letter saying that Sky was in the process of checking whether customer address data was up to date. Sky’s intention was to share their customer data with the Austrian Postal Service for the purpose of comparison. The customers had the opportunity to object to the sharing of their data. The OGH reviewed the pay TV provider’s general terms and conditions and found two further clauses in the general terms and conditions to be non-transparent and therefore inadmissible.

One of the clauses read:

‘Sky uses address data received in connection with subscription contracts to send subscribers information on Sky TV products by post, even beyond the term of the contract (through direct advertising), in order to enable subscribers to make the best possible use of Sky offers and (if applicable) to purchase Sky products of interest to them.`

This clause is not a mere informative declaration, but a contractual clause that can be challenged in association proceedings. However, the statement in the first sentence about the use of subscriber data is not to be understood in isolation from the processing of subscriber data referred to in the following sentence. The concept of data processing under Article 4(2) of the GDPR is very broad. It leaves any potential recipients completely undefined, as disclosure to unspecified third parties is possible within the meaning of the term 'processing'. The clause therefore does not make it clear how the data will be used. If the clause is interpreted in a way most unfavourable to customers, an unrestricted disclosure of the data to third parties is possible. Therefore, the clause is not transparent.

OGH 6 Ob 222/22y (17 May 2023)