The Berlin Court of Appeal has declared numerous clauses in the terms of use of the search engine company Google inadmissible. According to the judgment is the privacy statements used in 2012 “largely unlawful”, informed the Consumer Federation (VZBV) on 16 April (Az .: 23 U 268/13). In addition, numerous clauses in the terms of use of the group are ineffective, which would be used by Google in the same or similar form until today. “It is high time that Google finally takes consumer rights and data protection seriously and makes its terms fair and transparent,” said Legal Officer Heiko Dünkel from VZBV.

The Court of Appeal upheld a ruling by the Berlin Regional Court in November 2013. According to the judgment at the time, 25 clauses contained in the conditions of use and data protection were vaguely worded and unduly restricted the rights of consumers.

Review according to the GDPR

The judgment was also reviewed for so long because the Court of Appeal used the EU General Data Protection Regulation, which came into force in May 2018, as a benchmark. The court justifies this procedure ( PDF ) that the claim is based on the omission requirement “on a future action” by Google.

According to the ruling, “the mere unilateral pronouncement of certain data processing practices by a user of the clause cannot constitute the data subject’s consent. (…) Ticking the box with the text: ‘I agree to the Google Terms of Use and Privacy Policy’ may, such as not to be understood as consent. ” Because “the statement that you have read something does not necessarily mean that you have approved what you have read”. Unlike the district court, the district court does not recognize consent to the statement.

According to the court, the provisions of the Privacy Policy are “regarded as terms of service, because they create the (incorrect) impression to the consumer that he, if he wanted to or not, have to tolerate the practice described in the Privacy Policy” when the Use services from Google. Therefore, the reference goes beyond merely informing the users.

The Group has twelve terms of use to review, modify and delete all user information in its services, remove applications through direct access to the device, and discontinue features and features of the services. Only if it is “reasonably possible” will the user be informed in advance about the change of the service. In addition, Google gave the right to change the terms of use unilaterally without the consent of the consumer. In the Privacy Policy, Google reserved the right to collect “possibly” device-specific information and location data or “possibly” link personal information from the various Google services.

The Berlin Court of Appeal did not allow a revision of the judgment of the Federal Court of Justice (BGH). According to the VZBV Google has now filed a non-admission complaint with the BGH.