Federal Court of Justice: Order medication online: BGH protects sensitive data

For some medication, for example against pain, allergies or fungal infections, you don’t need a recipe. However, if pharmacies sell the products via internet platforms such as the Amazon Marketplace, customers must agree to the collection and processing of their data according to a judgment of the Federal Court of Justice (BGH). Without express consent, providers violate the European General Data Protection Regulation (GDPR), as the BGH in Karlsruhe decided.

The background is that personal information such as the name, delivery address and for the individualization of the medicinal products is necessary about health data within the meaning of the GDPR. These are particularly sensitive, said judge Thomas Koch.

According to his words, this also applies to medicines that are subject to pharmacy, but do not have to be prescribed by doctors. The top civil judges were guided by their judgments on a decision by the European Court of Justice (ECJ).

“The consumer is not that stupid”

In the two underlying cases, pharmacists have been fighting courts for years. Above all, the question was whether a distribution of the medication over internet platforms violates legal requirements. The Naumburg Higher Regional Court had already punished data protection violations.

The plaintiff’s lawyer emphasized in the trial at the BGH in January that the data would also also be disclosed by Amazon. If consumers had to agree to data processing, they could consider whether they really want to buy here.

The lawyer of the opposite side, on the other hand, had argued who was looking for medicinal products on Amazon, knew exactly which side he was on the road and does not need a special indication of it. “The consumer is not that stupid.”

However, the defendant’s revisions against their conviction to refrain from complaining about data protection violations were now unsuccessful at the BGH.

Richter Koch said that the requested consent serves to protect the consumer right. “Consumers should be able to decide freely as to whether and to what extent they cancel their data in order to participate in the market and conclude contracts.” (Az. I ZR 222/19 ua)

Market share of mail order over 20 percent

The Vice President of the Federal Chamber of Pharmacists, Franziska Scharpf, emphasized that the BGH had underlined the importance of data protection in the supply of drugs via online platforms. “What is a matter of course in the local pharmacy is apparently questioned in the online business,” she said. “A good pharmaceutical supply is based on trust – this arises from personal advice as well as through consistent data protection.”

The mail order business plays a relevant role in the business with the business with pharmacy, but not prescription drugs. According to numbers from the Federal Association of German Pharmacists’ Associations, he made up around a fifth in terms of sales and sales since 2020-the first year of Corona. He had gradually increased in the years before.

The proportion of mail order in this segment in homeopathic preparations is comparatively high. According to the numbers, he was a third in 2023.