Concluding contracts with insurance companies and credit institutions, for example by means of touch input on a tablet computer or other systems for electronic signatures, has been on the rise for years. In the foreground is the effort to save the printing of documents – including online consulting as a distance business. However, a data protection officer recently claimed in essence that signing on a tablet computer would not comply with § 4a I 3 BDSG.
In this context, § 4a I 3 BDSG merely stipulates: “Consent must be given in writing, unless another form is appropriate due to special circumstances.”. In electronic legal transactions, especially on distribution platforms and in social media, a user regularly consents to data processing by simply clicking a button. Spötter already said that the most common lie on the Internet is the click on the confirmation button “AGB gelesen und einverstanden” (Read and agree to the terms and conditions), § 305 II of the German Civil Code (BGB). The consent according to the BDSG is then more often found somewhere in the AGB. The written form is not mandatory if – as in this case – a different form appears to be appropriate in practice and has, moreover, long been customary. The legislator has prescribed general and special obligations in electronic legal transactions in §§ 312i and 312j BGB.
Evidence?
Even if the written form has been observed, i.e. a paper has been signed (§ 126 BGB), it can be disputed in court whether the signature is genuine – i.e. whether it comes from the person who is supposed to have provided it. Many a PKV-insured person is later unable to remember that he or she answered the health questions incorrectly by signing. In some cases, it was even found out in court that the intermediary had re-completed the entire application with all the health questions and even signed it himself with the name of the applicant.
follow-up: Liability for the damage – which may be determined by an actuarial report – caused by a change from the statutory health insurance or another private health insurance (PKV). At the end is the free judicial assessment of evidence according to § 286 of the German Code of Civil Procedure (ZPO). Already the government’s goal of achieving “secure, confidential, verifiable business transactions, for everyone, via the Internet” (§ 1 DE-Mail Act) by means of electronic mailboxes has failed: So the expert Linus Neumann [30c3] “Bullshit made in Germany”.
Even a registered letter with advice of delivery does not in itself provide proof of what was in the envelope – it could have been empty. Even if the customer signs a printout – as far as legally required – no subsequent scan provides 100% certainty that it is an image of the original. This is described by the expert David Kreisel [31c3] “Do not believe any scan you have not falsified yourself”.
Some PDF files are displayed differently on another computer if funds are missing and therefore the device is not using any. Setting the background color is also popular, resulting in “white font on white background”.
Insurers are sometimes unlucky in court because they are unable to prove whether and with what content the policyholder has received the legal information according to § 7 VVG, the revocation instruction or any contract amendments. The later judicial assessment of evidence must not violate the principles of experience and the laws of thought. Nor does it become any more predictable as a result of a written expert examining the authenticity of a document or just a signature as an assistant to the judge.
Simple denial of access then has the consequence – as the co-author as an actuarial court expert experienced – that the MB/KK 76, which have been outdated for 20 years but unfortunately never demonstrably changed, are still valid, that low Uralt deductibles are used as a basis or that the premium adjustment has never become effective due to lack of proof of access.
Accountability, §§ 242, 666 BGB
The agent or broker should ensure that the customer automatically receives a copy of all documents – including those electronically signed by the customer via tablet – immediately and automatically; for example, as image files via email. For in this way, too, the intermediary fulfils his duties of information and accountability. Further notification obligations can be found in §§ 7, 60 ff. Insurance Contract Act (VVG). At best, the customer will be asked to confirm receipt of the various pieces of information before and after conclusion of the contract. In case of doubt, the burden of proof for timely and complete information shall rest with the insurance undertaking and the sales department.
Necessary written form when concluding insurance contracts?
In principle, anyone can conclude contracts orally or electronically. The VVG only requires the written form (§ 126 BGB) in certain cases: These include § 6 III VVG (waiver of advice and documentation), § 7 I 3 last half-sentence VVG (waiver of information before conclusion of contract), and § 150 II VVG (consent of the insured person).
If, for example, the legally required written consent of the insured person is missing, this leads to the invalidity of the life insurance contract, and thus to a fraudulent financial loss, because the “brokerage service aimed at brokering void insurance contracts was in fact economically worthless”. (BGH, judgement of 04.03.1999, Az. 5 StR 355/98 – “Schmidt-Tobler”). Such contracts are then regularly unwound, i.e. all premiums plus of the benefits derived by the insurer, which the policyholder must first present, e.g. with an actuarial report.
Breach of the insurer’s professional secrecy?
If intermediaries now collect data from the (possibly future) policyholder (UN) and pass it on to insurers (VR), this does not constitute “disclosure” of secrets by insurance companies, § 203 of the German Criminal Code (StGB). The reverse case, i.e. data transmission by the BoD to brokers, is likely to occur more frequently without special permission from the UN, since standard brokerage mandates do not contain an explicit release from the duty of confidentiality for certain BoD members. They are aware of this, which can be seen from the fact that they are therefore discontinuing their cooperation with brokers, even if only with unpopular FinTechs for the time being. And – erroneously in law – because they only consider health information such as individual risk exclusions or risk surcharges for pre-existing conditions to be affected.
But the fact of the relationship to a customer alone must not be disclosed by the self-employed persons named in § 203 StGB (OLG Karlsruhe, judgement of 11.08.2006, Az. 14 U 45/04). As a rule, the BoD cannot invoke a statutory disclosure right or disclosure obligation vis-à-vis brokers. Moreover, “global declarations of delivery” violate the fundamental right to informational self-determination (BVerfGE of 23.10.2006, Ref. 1 BvR 2027/02). Furthermore, the release from the duty of confidentiality must always be effected before and not only afterwards (BGH, judgement of 10.07.1991, NJW 1991, 2955). The obligation of secrecy also applies to other professionals with their own duty of confidentiality, but this does not include brokers.
No applicability of the formal requirements of other types of contract?
The judgement of the OLG Munich of 04.06.2012 (Az. 19 U 771/12) concerns a consumer loan. According to § 492 I 1 BGB therefore at least the electronic form (qualified signature) according to § 126a BGB had to be kept, which – until the legislator regulates it differently – is not fulfilled by tablet signature until today. However, § 492 BGB does not refer to insurance.
Signature of intermediary may replace customer signature
The future UN can authorise its broker at any time verbally, i.e. without formality, §§ 164 I, 167 I BGB. The broker’s power of attorney “does not require the form which is intended for the legal transaction to which the power of attorney refers”, § 167 II BGB. Insofar as an overcautious broker believes that the consent pursuant to § 4a I 3 BDSG should be given in writing to the BoD, the broker with verbal power of attorney may well sign the BDSG consent on behalf of the customer (or with the addition “in connection with”).
The BDSG does not prescribe a so-called “maximum personality” (as in the case of marriage, for example), i.e. the exclusion of representation by proxy. “The written form can be replaced by the electronic form, if not from the law another one results”, § 126 III BGB: If, for example, the broker uses his (electronic) signature to conclude insurance contracts for customers (or for BDSG consent for the customer), he would only have to make it clear that he is acting here as an authorised representative of the future UN, because otherwise he would be liable for the insurance premiums himself, § 164 II BGB.
No sales obstacle through the use of tablet and pad
On closer inspection, the legal validity of a signature on a pad or tablet does not even matter. In many cases the verbal agreement of the (possibly future) UN is sufficient. And insofar as the law requires a written form, the (possibly only orally) authorised broker can – on behalf of the customer – sign a document or provide an electronically qualified signature.
by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm
with friendly permission of www.experten.de
Link: http://www.experten.de/2016/03/29/bdsg-falle-vermittlung-mit-elektronischer-unterschrift/
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Dr. Johannes FialaPhD, MBA, MM
Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
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