Court case 9 U 6/19 – Court Ruling (Germany, 2019)

Both the plaintiff and the defendant run pharmacies. The plaintiff alleged that the defendant sells prescription-free medicines via Amazon-Marketplace, violating competition law. Firstly, the Court found that customers disclose their health data to the sales platform Amazon deliberately and there is no data transmitted by the defendant to Amazon. After Amazon has transmitted the order data, the situation is comparable with a direct order from the defendant's online pharmacy. The legislator has permitted online pharmacies. Then, the Court found that customers’ order data is health data and fall within Article 9(1) GDPR. Amazon does not collect health data stricto sensu but it can draw conclusions about customers’ health from the order data. The plaintiff pointed out that any breaches of data protection laws by the Amazon Marketplace platform are not part of this legal dispute. It is also not a question whether any data protection breaches by the platform can be attributed to the defendant. The decisive factor here is the data processing by the defendant himself. The Court finally found that there is no explicit consent by the customers as requested under Article 9(2)(a) GDPR and an implied consent cannot fulfill the provision’s requirement. Additionally, the professional code of conduct of the Saxony-Anhalt Chamber of Pharmacists obliges pharmacists to obtain written consent.