Sky Österreich Fernsehen GmbH – Court Ruling (Austria, 2021)

The claimant is an Austrian consumer protection institution (Verein für Konsumentinformation). It filed a Verbandsklage pursuant to § 28 of the Austrian Consumer Protection Act (KSchG) to stop the use of three (general terms and conditions) clauses with the Commercial Court of Vienna (HG Wien). A Verbandsklage is a form of popular action in which associations are granted standing not to assert the violation of their own rights, but of the rights of the general public. Clause 1: Pursuant to Sky's terms and conditions, consumers are obliged to immediately notify Sky of any changes to the data provided and notices sent to the last known address of consumers shall be deemed received. However, Sky customers received a letter with the Clause 1 informing them that their customer data should be passed on to Austrian Post for verification. If the data stored at the post office did not match the Sky data, the Sky data should be updated. Consent for the data comparison was not obtained from the customers. Sky rather invoked the legal basis of Article 6(1)(f) GDPR. If data subjects are against the verification, they should explicitly object to it. Clause 2: The second clause dealt with the transfer of data and with storage periods. Among other things, it was stated here that data may be transferred to third parties who have a contractual relationship with the subscriber (e.g. IPTV providers) and to service providers who provide services on behalf of Sky. It also stated that Sky stores the data within the statutory retention periods (in particular according to the Austrian Company Code (UGB) and the Austrian Federal Tax Code (BAO)). Clause 3: Finally, Sky's general terms and conditions stipulated that further framework data from the subscription contract may be processed for the purpose of direct advertising. The court ruled that all clauses violate the GDPR and are therefore invalid. = First, the court found that the VDI itself may assert the infringement. In particular,