Advertising law in Germany: When is there a right to request to stop sending advertising in e-mails?

The District Court in Neumarkt in the judgment of 10 November 2022 resolved a dispute between a consumer and a company regarding the permissibility of sending adverting e-mails. The company sent a promotional e-mail titled “How was your experience” to the home e-mail address of the claimant who had previously purchased and redeemed a voucher for floating. The claimant argued that he had not given any advertising consent. The defendant, however, argued that the information about the use of the e-mail address and the possibility to object when redeeming a voucher was sufficient. The question of who was right in this case was clarified by the District Court in Neumarkt taking into account the Unfair Competition Act (UWG) and the European Data Protection Directive for electronic communications as well as the provisions on the protection of general personal rights.

According to § 7(2)(3) UWG, any advertising using electronic mail with the recipient’s prior consent constitutes unreasonable harassment unless the following conditions are met:

• an entrepreneur has received the customer’s e-mail address in connection with the sale of a good or service,
• the entrepreneur uses the address for direct advertising for his own similar goods or services,
• the customer has not objected to the use, and
• when the address is collected and every time it is used, the customer is clearly informed that he can object to the use at any time without incurring any costs other than the transmission costs according to the basic tariffs.

In addition, reference may also be made to the European Data Protection Directive for electronic communications, in particular Art. 13 (1), which states that customers must be able to object to the storage and use of their contact details free of charge, unless they have previously expressed such an objection.

In the present case, the analysed advertisement met the requirement of inadmissible solicitation with the meaning of Art. 7 UWG. However, the District Court in Neumarkt found that the consumer was not entitled to a claim for cessation of infringements under the provisions of the UWG, due to the wording of Art. 8(3) UWG, which exhaustively indicated the persons entitled to pursue claims.

The consumer has, however, a right to a claim for cessation against the entrepreneur for unlawful infringement of their personal rights. The use of e-mail for advertising purposes against the express will of the claimant is, in principle, a violation of their right to privacy which a protected personal right.

The case law also draws attention to the necessity to obtain a clear declaration of will form the consumer. Therefore, the mere fact that the entrepreneur informs about the use of date cannot be considered at the consumer’s implicit for advertising purposes. Another controversial issue in the discussed judgment was the understanding of the concept of “advertisement”. The defendant argued that his e-mail should not have been classified as advertising at all.

The Federal Court of Justice (BGH) understands the term advertising as all activities of an entrepreneur that are aimed at promoting the sale of his products or services. This definition is consistent with Art. 2(a) of the Directive 2006/114/EC concerning misleading and comparative advertising. In a broad sense, advertising is any statement made as part of a trade, business, craft or freelance profession intended to promote the sale of goods or services.

It can be assumed that the defendant’s e-mail in the form of a customer satisfaction poll is advertising, because it serves to build consumer loyalty by obtaining their opinion and this promotes sales.

Even if the e-mail is linked to a previous voucher purchase, the customer’s personal rights are violated if there is no clear and explicit indication and that they can object to the use of their e-mail address at any time.

The district court also emphasised the following aspects: unwanted advertising bothers the user, affects their privacy, and requires time to sort out. It also consumes storage space and disrupts the reception of further e-mails.

This case shows how important it is for entrepreneurs to comply with advertising law and that even a satisfaction survey may be not compliant with the law if it is sent without the recipient’s consent.

• judgment of the District Court in Neumarkt of 10 November 2022, case no 3 C 270/22