Germany: Lawsuit claims data watchdog acted as lawyer for German media outlet ‘Der Spiegel’, seeks to overturn its decision that the paper’s ‘pay or okay’ banner is legal

The non-profit Noyb, founded by Austrian activist lawyer Max Schrems, filed a complaint under the General Data Protection regulation (GDPR) with the Hamburg Commissioner for Data Protection and Freedom of Information (HmbBfDI) back in 2021 over Der Spiegel’s “pay or OK” banner.

It took the court three years to rule that Der Spiegel’s banner was permissible.

Now, noyb argues that the Hamburg Data Protection Agency (DPA) “was in close contact with SPIEGEL during the proceedings”.

“Instead of investigating and deciding impartially, it also met with representatives of the company several times, invited them to its premises and provided feedback on the proposed changes,” the non-profit argues.

Dr Raphael Rohrmoser, lawyer for the complainant: “The Hamburg data protection authority has obviously provided SPIEGEL with legal advice. The administrative fee charged by the data protection authority is likely to be significantly lower than the fees charged by law firms providing legal advice. For SPIEGEL, the authority’s approach represents a win-win situation.”

Max Schrems, Honorary Chairman of noyb: “Nobody should be a lawyer and a judge at the same time. However, the Hamburg data protection authority seems to see no problem in advising companies or even actively calling for the introduction of ‘Pay or OK’ instead of objectively investigating the facts. It is obvious that the authority will not consider the changes it has arranged as illegal.”