Higher Regional Court Hamburg: Guest access not always required under data protection law

DLA Piper successfully defended an online marketplace operator, who does not offer a guest access option for its customers, before the Hanseatic Higher Regional Court (HansOLG). The marketplace requires customers to create a password-protected account in order to make purchases. The Federation of German Consumer Organisations saw this in particular as a violation of the principle of data minimisation. The HansOLG did not follow this line of argument. Rather, it considered this approach to be justified.

In order to ensure the functionality of the hybrid marketplace, where own goods are sold alongside those of numerous third-party merchants, the defendant is entitled to insist on a customer account. Overall, the advantages for the consumer having a customer account on the defendant's online marketplace, in the context of practical order processing and data management, outweigh the disadvantage associated with the obligation to provide a password when setting up such an account.

The Hamburg Data Protection Officer (HmbBfDI) also came to this conclusion in the first-instance proceedings and at the request of the Hamburg Regional Court (LG Hamburg). Based on a decision of the Data Protection Conference of 24 March 2022, the prevailing legal opinion is that consumers should be offered guest access in online retailing. However, online retailers may deviate from this principle in individual cases due to special circumstances. The fact that the defendant operates a hybrid marketplace system in which third-party retailers are also integrated to a large extent would support such an exception.

Leave to appeal was denied and the amount in dispute required for an appeal against denial of leave to appeal is not reached.

The DLA Piper team was jointly led by partners Verena Grentzenberg (Data Protection, Hamburg) and Prof Dr Stefan Engels (Advertising/Litigation, Hamburg). Also involved were senior associate Katharina Pauls (Data Protection, Hamburg) and associates Katja-Maria Harsdorf and Jonas Mücke (Advertising/Litigation, Hamburg).