Hig­her Regio­nal Court of Dres­den: Con­sent to data pro­ces­sing when data car­ri­ers are returned

The num­ber of pro­ducts con­tai­ning memo­ry chips is ste­adi­ly incre­asing. With the incre­asing deve­lo­p­ment of Inter­net of Things (IoT) devices, this trend is not expec­ted to wea­k­en. The­se devices may con­tain per­so­nal data. The ques­ti­on of what hap­pens to this data in the event of a war­ran­ty or return of the pro­duct has now been addres­sed by the Hig­her Regio­nal Court of Dres­den in a ruling of 31 August 2021 (Case 4 U 324/21) (only in German).

The sta­te of affairs

The buy­er of a hard disk had retur­ned it to the sel­ler after a defect occur­red within the three-year war­ran­ty peri­od. Befo­re the return, the sel­ler infor­med the buy­er by e‑mail that the cus­to­mer was respon­si­ble for back­ing up the data. After sen­ding it in, the hard dri­ve was des­troy­ed and a new one was sent to the buyer.

The plain­ti­ff reques­ted infor­ma­ti­on from the defen­dant pur­su­ant to Artic­le 15 GDPR as to whe­ther and to what ext­ent third par­ties were gran­ted access to the data stored on the hard dri­ve. In addi­ti­on, the plain­ti­ff clai­med that the defen­dant should refrain from retai­ning the data stored on the hard dri­ve, pas­sing the data on to third par­ties or publi­shing the data. Final­ly, the Plain­ti­ff deman­ded com­pen­sa­ti­on for damages.

Key points of the decision

In the opi­ni­on of the court, the right to infor­ma­ti­on had alre­a­dy lap­sed by vir­tue of per­for­mance. The defen­dant had infor­med the plain­ti­ff before­hand that it no lon­ger had access to the plaintiff’s per­so­nal data stored on the hard dri­ve after it was des­troy­ed. Whe­ther the infor­ma­ti­on was incom­ple­te, as alle­ged by the plain­ti­ff, was irrele­vant to the ques­ti­on of per­for­mance. The sole decisi­ve fac­tor for the ful­fill­ment of the cla­im to infor­ma­ti­on is the expres­sed will of the par­ty owing the infor­ma­ti­on to have pro­vi­ded the infor­ma­ti­on in full. The­re was no risk of repe­ti­ti­on to estab­lish a desis­tance cla­im. After all, the data had alre­a­dy been per­ma­nent­ly destroyed.

The con­side­ra­ti­ons regar­ding a pos­si­ble dama­ge com­pen­sa­ti­on cla­im based on Artic­le 82 GDPR are ins­truc­ti­ve. A cla­im pre­sup­po­ses a vio­la­ti­on of the pro­vi­si­ons of the GDPR. In accordance with Artic­le 4(2) GDPR, the dele­ti­on or des­truc­tion of data also con­sti­tu­tes pro­ces­sing. Accor­din­gly, the phy­si­cal des­truc­tion of a hard dri­ve that took place here and the asso­cia­ted loss of data also con­sti­tu­tes data pro­ces­sing in the terms of the GDPR. In prin­ci­ple, such data pro­ces­sing requi­res a legal basis. The Hig­her Regio­nal Court assu­med con­sent as the legal basis in this case.

In the opi­ni­on of the Court, the return of the defec­ti­ve hard disk con­sti­tu­ted an impli­ed decla­ra­ti­on of con­sent. The buy­er had been cle­ar­ly infor­med by e‑mail befo­re the return that the data could not be backed up. The buy­er could have easi­ly expres­sed that he was not able to save the data befo­re and the­r­e­fo­re wan­ted the defec­ti­ve hard disk to be retur­ned in all cases. The­r­e­fo­re, from the rele­vant point of view of the reci­pi­ent, the return of the device wit­hout com­ment also con­sti­tu­tes con­sent to the loss of the data.

The reso­lu­ti­on via con­sent rai­ses cer­tain pro­blems. As results from Artic­le 7(3), Sen­tence 1 GDPR, con­sent is in prin­ci­ple free­ly revo­ca­ble. Moreo­ver, in accordance with Artic­le 13(2)c GDPR, the con­trol­ler must inform the data sub­ject about the right of revo­ca­ti­on when coll­ec­ting the data. 

It is the­r­e­fo­re ques­tionable why the Hig­her Regio­nal Court did not refer to the per­for­mance of a con­tract in accordance with Artic­le 6(1)b GDPR. Data pro­ces­sing for the ful­fill­ment of a war­ran­ty cla­im should in prin­ci­ple be neces­sa­ry for the per­for­mance of the con­tract. In the spe­ci­fic case, howe­ver, the Hig­her Regio­nal Court appar­ent­ly had con­cerns about com­pli­ance with the legal requi­re­ments pla­ced on gene­ral terms and con­di­ti­ons of busi­ness. In this regard, the Hig­her Regio­nal Court wro­te in its decis­i­on: “Whe­ther […] the purcha­se agree­ment exis­ting bet­ween the par­ties and the con­trac­tu­al obli­ga­ti­ons asso­cia­ted the­re­wi­th have been effec­tively modi­fied pur­su­ant to §§ 305 ff. of the Civil Code, can be left unre­sol­ved within the frame­work of the cla­im in accordance with Artic­le 82 GDPR.”

Our assess­ment – rele­van­ce of the ruling for companies

The decis­i­on impres­si­ve­ly demons­tra­tes the new data pro­tec­tion chal­lenges that can ari­se for com­pa­nies as a result of the incre­asing digi­ti­sa­ti­on and net­wor­king of pro­ducts. From the time of deli­very, every memo­ry chip instal­led in a pro­duct can con­tain per­so­nal data and beco­me an addi­tio­nal pro­blem in the case of a war­ran­ty cla­im. In order to avo­id dama­ge com­pen­sa­ti­on claims from data sub­jects and the asso­cia­ted lawsuits, com­pa­nies should review the hand­ling of per­so­nal data within the frame­work of war­ran­ties and deve­lop clear gui­de­lines so as not to have to ope­ra­te based on legal­ly uncer­tain impli­ed con­sent. It would be expe­di­ent to make clear arran­ge­ments in advance.


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