Transmission of positive data by mobile network operators to SCHUFA allowed
The question of whether mobile network providers are entitled to transmit so-called positive data to credit bureaus like SCHUFA has recently engaged the Federal Court of Justice (BGH) (Judgment of October 9, 2024, Ref. VI ZR 431/21). At the core was the data protection law’s permissibility of transmitting information about contractually fulfilled contractual relationships (“positive data”), particularly information regarding the conclusion and regular execution of contracts, without any payment defaults.
Background of the legal dispute
Transmission of contract data without negative feature
In the underlying case, a consumer objected to the practice of a mobile network company automatically and routinely reporting both the conclusion of a mobile contract and its completion – i.e., proper termination without payment default – to SCHUFA. The consumer viewed this data transmission as a violation of the General Data Protection Regulation (GDPR). Specifically, he argued that such reports are not covered by consent or any other legal basis.
Lower courts assess data transmission differently
The lower courts reached differing conclusions. While the district court deemed the data transmission inadmissible, the court of appeal judged the transmission of positive data to be lawful. Accordingly, the case was brought for a final assessment before the Federal Court of Justice.
Decision of the Federal Court of Justice
Legitimate interest of the credit bureau and the contracting party
The BGH confirmed the permissibility of transmitting positive data to credit bureaus like SCHUFA under Art. 6 Para. 1 lit. f GDPR. According to the court’s view, there is a legitimate interest for the credit bureau in keeping their data stock current and meaningful. This is especially true for information that enables a comprehensive credit assessment, for example, the existence and contractual execution of long-term obligations.
Balance of interests under GDPR
In the context of balancing interests, it depends on whether the legitimate concerns of the affected person outweigh the interests of the credit bureau and their contracting parties. For positive data, i.e., information without negative features like payment defaults, the BGH did not see an impermissible infringement on personal rights or other legitimate interests of the affected person as predominant. Moreover, those affected were explicitly informed about the possibility of such a report in the data protection information.
No consent required
The Federal Court of Justice clarified that explicit consent of the affected person is not required for the transmission of positive data. Rather, a balance of interests in the sense of Art. 6 Para. 1 lit. f GDPR is sufficient. However, the prerequisite remains that the data transmission is limited to the necessary scope and conducted transparently.
Significance for practice
The current decision of the BGH provides legal certainty regarding the permissibility of transmitting positive data to credit bureaus in the telecommunications sector. For mobile network companies and other SCHUFA contracting parties, it is now clear that not only negative features but also contractually fulfilled contractual relationships may generally be reported, provided the balance of interests has been accordingly assessed.
For companies and affected individuals, it is advisable to carefully consider the principles of this decision in future data transmissions and to create transparency towards the contracting parties.
Should any uncertainties arise or further advisory needs exist in connection with data protection issues regarding the transmission of positive data to credit bureaus, MTR Legal is pleased to offer comprehensivelegal advice in banking lawat your disposal.
