Peter A Clarke

The CJEU has found that the General Data Protection Regulation (GDPR) does not preclude national legislation that confers on competitors of an alleged perpetrator of a GDPR infringement, the right to bring civil proceedings against the alleged perpetrator on the grounds of such infringements and on the basis of the prohibition of unfair commercial practices. The Court also found that information that customers enter when ordering medicine online, such as names, delivery addresses, and elements necessary for the individualization of medicines, constitute data concerning health, even when the sale of such medicines is not subject to a medical prescription.

The Court found that:

• those data are capable of revealing information about the health status of an identified or identifiable data subject by means of an intellectual operation involving comparison or deduction because a link is established between that person and a medicinal product, its therapeutic indications or its uses, irrespective of whether that information concerns the customer or any other person for whom the customer places the order.
• in the absence of a prescription, it is immaterial whether it is only with a certain degree of probability and not with absolute certainty that those medicinal products are intended for the customers who ordered them.
• to make a distinction according to the type of medicinal product and to whether or not the sale of those medicinal products requires a prescription would be contrary to the GDPR’s objective of ensuring a high level of protection.
• the seller must inform those customers in an accurate, comprehensive and easily understandable manner of the specific characteristics and purposes of the processing of those data and request their explicit consent to that processing.

The case arose due to a dispute between two pharmacies on whether marketing pharmacy-only medicines on Amazon Marketplace constituted an unfair commercial act. The Regional Court of Dessau-Roßlau upheld this action whereas the Higher Regional Court of Naumburg dismissed an appeal holding that marketing on Amazon of pharmacy-only medicines is contrary to national law against unfair competition as such marketing constitutes the processing of data concerning health without customer consent. The press release is found here