Court case 12 B 19.1648 – Court Ruling (Germany, 2020)

An Irish provider of an online vacation rental marketplace was asked by a Bavarian authority to transfer data of its users who are renting out their appartments for vacation purposes. The purpose was to fight the misappropriation of property in a tight housing market. The request was restricted to uses of an appartment for the purpose of providing accommodation for a period of more than 8 weeks in a calendar year. Is a request - not limited to the individual case - for the provision of information on all users of an online vacation rental marketplace who rent out their appartment for more than 8 weeks a calender year in order to fight shortage of living space by misappropriation of property possible and on what legal basis can a data transfer between the company and the requesting authority be based. The service provider must and may only provide information on the basis of Section 14 (2) of the German Telemedia Act if this provision entitles the service provider to provide information itself and if the requesting authority can also provide a corresponding, precisely tailored authorisation under special law for the right to information, transmission and receipt of data. If these conditions are not cumulatively fulfilled, the service provider cannot provide information. The "data protection opening clause" of Section 14 (2) of the German Telemedia Act (TMG) expressly permits the service provider to provide information only "in individual cases" and not based on broad screening criteria which would lead to the disclosure of uninvolved persons who may already have a permission granted by an authority to rent out their appartment. However, this would in each case presuppose a concrete initial suspicion relating to persons or accommodation. The fact of occasional, perhaps even multiple, short term or long term rentals, will typically not be sufficient to assume misuse without further indications of illegal activity. This is regardless of whether the rental is list