Without the consent of the parents or a box office had organized a competition at an event to lure new members. The Higher Regional Court in Hamm prohibited this action after a lawsuit.
A common practice is to attract potential new customers with so-called competitions. If a card is filled out with the prospect of winning, the personal data will be transmitted to the operator. A health insurance company also did this at a job fair. However, the Higher Regional Court (OLG) Hamm judged such data collection to be illegal. According to this, health insurance companies "may not use personal data of minors over 15 years of age for advertising purposes without the consent of a legal guardian".
Such collecting is not legally compatible, the judges decided in the judgment published on Friday. According to the court, it cannot be assumed that young people aged 15 and over are in principle mature enough to assess what it means to sign a declaration of consent to the storage of data, data use and data collection for advertising purposes (Az. I-4 U 85 / 12).
Health insurance company collected data at job fair
In this specific case, a health insurance company organized a competition for minors at a job fair. The fair mainly presents training, job and study opportunities and is primarily aimed at students. The name, address and date of birth were requested on the cards to be filled out. In addition, the participants had to sign a declaration of consent for data storage. It said: "I agree that the health insurance company stores and uses data to inform and advise me by phone, in writing, by email or SMS about the advantages of a B membership and new offers from B." If the children were under 15, the parents had to sign as legal guardians. Minors and young people over the age of 15 were able to fill out the card themselves. The consumer advice center of North Rhine-Westphalia had sued the cash register against this advertising measure.
A lack of maturity to grasp the scope
The health insurance company took the legal view that data collection for minors "is not generally prohibited". It should also be noted that “depending on their age, minors have different levels of development, older minors could certainly assess the importance of the explanation. With this rating, it should be noted that minors aged 15 and over could already choose their own health insurance company in accordance with section 175 (1) sentence 3 of the Social Code Book V. ”
The OLG disagreed with this view. It simply cannot be assumed that minors from the age of 15 “generally have the necessary maturity to see the scope of the declaration of consent for data storage and data use for advertising purposes.” Children and adolescents make a short-term decision about the transfer of their data. A competition and the choice of a cash register cannot be compared, according to the OLG. (sb)
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