Recently, a data protection officer claimed that the signature on a tablet computer would not comply with § 4a I 3 of the Federal Data Protection Act (BDSG) >/g>. However, such a signature – for example with an electronic pen – focuses on the emotional experience of the customer and not on the fulfilment of an allegedly mandatory written form.
No BDSG trap?
Section 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. Critics have already said that the most common lie on the Internet is the click on the confirmation button “AGB gelesen und einverstanden”, § 305 II BGB (German Civil Code).
The consent according to the BDSG is then often found somewhere in the general terms and conditions. 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.
Accountability, §§ 242, 810, 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”).
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 the permission of the UN, since standard brokerage mandates do not contain an explicit release from the duty of confidentiality for certain BoD members:
The self-employed named in § 203 StGB (German Criminal Code) are not allowed to disclose the fact of the relationship to a customer (OLG Karlsruhe, judgement of 11.08.2006, Az. 14 U 45/04). The BoD may not invoke a statutory disclosure right or a disclosure obligation vis-à-vis brokers. In addition, “global declarations of confinement” violate the fundamental right to informal self-determination (BVerfGE of 23 October 2006, Ref. 1 BvR 2027/02). Moreover, 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 professions with their own obligation of secrecy.
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 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 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 as an authorised representative of the future UN, because otherwise he himself would be liable for the insurance premiums, § 164 II BGB.
by Dr. Johannes Fiala
by courtesy of
www.versicherungsbote.de (published on 23.02.2016)
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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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