Telephone advertising only on the basis of public directories is unlawful

The Federal Administrative Court has restricted the possibilities for telephone advertising. Anyone who collects and stores telephone numbers of dental practices published in publicly accessible directories in order to make advertising calls is acting unlawfully, according to a ruling by the judges in Leipzig on Wednesday. They see this as a violation of the General Data Protection Regulation (GDPR) in conjunction with the Unfair Competition Act (UWG). According to them, it is not possible to rely on the existence of "legitimate interests" in accordance with Article 6 GDPR. Rather, informed consent is required.

With its ruling (Ref.: BVerwG 6 C 3.23), the Federal Administrative Court essentially supports the view of the Saarland Data Protection Commissioner Monika Grethel and the lower courts. In 2017, the inspector ordered –, still on the basis of the Federal Data Protection Act in the version applicable at the time –, the later plaintiff to stop collecting personal data from owners of dental practices and the associated telephone advertising, unless the person concerned had given their consent or a business relationship already existed with them.

Reachable for patients, but no cold calls

The plaintiff buys precious metal remnants from dentists. To this end, it collected the names of practice owners as well as their addresses and telephone numbers from public directories such as the Yellow Pages. She used the contact details she had stored to call the practices to find out whether they had gold fillings for sale. Following the legally binding rejection of an initial court application, the plaintiff again unsuccessfully applied to Grethel for the 2017 decision to be revoked, citing the GDPR, which came into force in May 2018. She was also unsuccessful in the first two appeals.

The Federal Administrative Court has now rejected the plaintiff's appeal against the ruling of the Saarland Higher Administrative Court. Contrary to the opinion of the lower court, the court does consider the element of permission of legitimate interest to be applicable in principle. However, this should be seen in the context of Section 7 UWG on "unreasonable harassment". The German legislator had thus implemented requirements for the protection of the privacy of data subjects from unsolicited advertising sent electronically from the Data Protection Directive for electronic communications.

The purpose of the data processing pursued by the plaintiff was contrary to this in summary: an entry in public directories in this case served exclusively to ensure accessibility for patients. Moreover, the sale of precious metal remnants for profit is neither typical nor essential for the activity of a dentist.

(vbr)