Thursday, 22 November 2012

Protecting privacy while collecting debts - CJEU in C-119/12 (Probst)

The CJEU issued one more judgment today regarding consumer protection in the case C-119/12 (Probst). This case concerns interpretation of Art. 6 Par. 2 and 5 of the Directive on privacy and electronic communications. Specifically, the question was whether a service provider is allowed to transfer traffic data to the assignee of a claim for payment in respect of telecommunication services, especially when in addition to the general obligation to respect the privacy of telecommunications and to ensure data protection of consumers' data, other confidentiality stipulations have been made.

Mr Probst, a German consumer, was the owner of a telephone line provided by Deutsche Telekom AG, through which his computer connected to the internet. In 2009 he occasionally accessed internet through the number provided by Verizon. Deutsche Telekom listed these charges as 'amounts due to other providers' on its bills. Since Mr Probst did not pay these amounts, they were later claimed by nexnet - as asignee of that debt pursuant to a factoring contract concluded between the legal predecessors to Verizon and to nexnet.

The CJEU decided that indeed such transfer 'of traffic data to the assignee of its claims for payment in respect of the supply of telecommunications services for the purpose of recovery of those claims' as well as 'authorising that assignee to process those data' was allowed. Provided that the assignee 'acted under the authority of the service provider' and 'confined itself to processing the traffic data necessary for the purposes or recovering the claims assigned'. The contract concluded between the service provider and the assignee had to guarantee that the processing of traffic data by the assignee would take place exclusively under the control of the service provider and on its instructions. (Par. 27) The CJEU decided that in the given case it was for the national court to decide whether these conditions were fulfilled, however, a factoring contract that was concluded between the parties suggested that this was the case. (Par. 28)

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