Lidl Plus app: Collecting personal data has no price

Is the term "free" misleading if users have to provide and have their personal data analysed to receive discounts? The Higher Regional Court of Stuttgart (OLG) says no. In a ruling on Tuesday, the 6th Civil Senate responsible for consumer law dismissed an action for an injunction brought by the German Federation of Consumer Organisations (vzbv) against the Lidl Plus app-based benefits programme. Accordingly, the discounter chain does not have to change the design of the app and can continue to label it as free (Ref.: 6 UKl 2/25).

The vzbv sued Lidl because it believes that the provider is not allowed to describe the bonus programme as "free". Users do not pay any money for the mobile application. However, they have to provide their personal information, which the provider can then utilise. According to the consumer protection organisation, this is a form of payment. Lidl should therefore have stated a "total price" – in this case the value of the personal data.

At first instance, the Higher Regional Court took a different view: according to German and European law, the term "price" refers to a monetary amount. Because customers do not have to pay a Euro for the app, there is also no "total price" that would have to be stated. The laws should protect consumers from hidden financial costs and subscription traps, not from the use of data, according to the reasons for the judgement.

Consumer advocates head to the BGH

The court was also unable to recognise any misleading information. Anyone studying the app's terms of use will find a statement right next to the word "free" that data is collected and used in return, it explains. It is therefore clear to an attentive reader that although the app does not cost any money, it still requires some kind of consideration in the form of their own data. Customers have to tick a box to agree to the Lidl Plus terms and conditions when signing up for the programme.

Due to the otherwise unresolved legal situation and the fundamental importance of the matter, the Higher Regional Court of Stuttgart has allowed an appeal, thus paving the way to the Federal Court of Justice (BGH). The consumer advice centre will "in all likelihood" take this route and have the issue of paying with data clarified by the highest court, announced vzbv board member Ramona Pop. Bonus apps are "by no means free". Consumers pay for discounts when using them by disclosing personal data. Users should at least be made more aware of this than has been the case to date.

(mki)