Google Fonts: Austrian mass warning fails
An Austrian test case due to an alleged data protection violation has failed. Eva Z. has dropped all claims against a website operator who dynamically integrated Google fonts from a Google server. Z., through her lawyer Marcus Hohenecker, threatened well over 30,000 Austrian website operators with legal action if they did not pay 190 euros each. In the first such trial it turns out that Z. cannot prove anything.
Z. complained about “loss of control” over the digits of her IP address and accused the defendant company of having caused her “significant discomfort” and “massively annoyed” her. It happened like this: Z. opened the company’s website and a font file was automatically loaded from a Google server. According to Z’s accusation, her IP address was transferred to the USA – the alleged loss of control with its supposedly bad consequences.
The fundamental fact that it would violate the GDPR to transfer personal data to the USA without consent is legally undisputed. The IP address of a personal internet access is personal data. However, it does not follow that such a violation always causes damage that would have to be compensated. Z. wanted to turn this into a business model with the help of her Lower Austrian lawyer Hohenecker.
Z. commissioned an IT company to actively search for Austrian websites with dynamically integrated Google Fonts and to create a list. She then had a program installed that automatically retrieved tens of thousands of such websites. The Google server was asked again and again for the font file.
She then threatened the website operators with a lawsuit if they did not pay 100 euros in damages plus 90 euros in expenses. After a test run with a few threatening letters, the avalanche of warnings about Google Fonts followed: The IT service provider admitted that it had written tens of thousands of similar letters. With the help of a printing company, another 32,000 letters are said to have been sent to the post office. It is not known how many of the recipients paid. The damage could run into the millions. According to Hohenecker, his client has invested more than 100,000 euros. He himself charges her the usual hourly rates, but does not receive any profit sharing. He denies that he is in a relationship with Z.
Accusations without evidence
Some of those affected have decided to wait for the trial. Hohenecker actually filed at least three lawsuits on behalf of Z. But when the evidence was taken in the first trial, it became clear that the plaintiff could not prove anything. She was unable to demonstrate that she was harmed by the font retrieval, nor that her IP address was actually transferred to the USA. Even an employee of her cell phone provider who was called as a witness couldn’t help her. It is obvious that Google delivers these frequently requested files from servers that are as close as possible to the user and not on the other side of the Atlantic. After all, it should be quick and cheap.
“In view of the clear results of the evidentiary proceedings, the warning lawyer’s client waived all claims immediately before the end of the oral hearing,” reports the law firm Brandl Talos, which represented the defendant company is inferior and has to pay the procedural costs.” Exactly how much the costs are is currently unknown; Hohenecker himself cited a fee of more than 900 euros in the lawsuit, plus court fees and the fee for Brandl Talos.
“The verdict is not only a success for our client, but is groundbreaking for thousands of affected companies in Austria, as it suggests that the warning lawyer drew up all letters of demand according to the same principle,” commented Raphael Toman from the law firm Brand Talos. The judgment is legally binding on the matter.
The defeat could hurt Z. and Hohenecker far beyond the legal costs: The Austrian Economic and Corruption Prosecutor’s Office (WKStA) is investigating the two for commercial blackmail and serious commercial fraud. If the data protection lawsuit had been successful, the public prosecutor would probably have stopped its investigation. In addition, the Lower Austria Bar Association is planning disciplinary proceedings against its member Hohenecker; the chamber wanted to wait and see how the lawsuit would turn out. That is now clarified.
The business model with paid warnings that is common in Germany does not exist in this form in Austria. Legally speaking, the letters are an offer of an out-of-court settlement. Anyone who does not accept this does not have to pay anything for the time being, but runs the risk of being sued under civil law and/or prosecuted by the data protection authority.
By the way: You can also host Google Fonts yourself – if you want to be on the safe side in terms of data protection.
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