Who: Business customer vs. online shop
Where: Higher Regional Court of Dresden, Germany
When: 24 April 2016
Law stated as at: June 2016
What happened:
A company invited its customers to participate in a customer satisfaction survey. Referring to the claimant’s earlier order the company sent e-mails to inter alia ask him to rate the company’s products and services. The claimant (a company) had not explicitly consented in receiving e-mail advertising. Neither did the e-mail inform the recipient that they could object to such use of their email address at any time.
The court considered this to be unfair business behaviour in the sense of Section 7 (2) No. 3 German Act Against Unfair Competition (judgement dated 24 April 2016, docket no. 14 U 1773/15). According to this provision e-mail advertising (as well as advertising via automated calling or fax machines) without the addressee’s prior express consent is considered as unconscionable pestering. This is irrespective of whether the recipient is a private individual or a business professional. The court particularly held that such follow-up customer care is advertising in the sense of the legislation because it is done in order to maintain the existing client relationship and achieve further sales. It is also intended to improve customer loyalty and generate referrals.
As an exception according to Section 7 (3) UWG, e-mail advertising without prior consent would be allowed if (i) the entrepreneur has obtained from the customer the latter’s electronic mail address in connection with the sale of goods or services, (ii) the entrepreneur uses the address for direct advertising of his own similar goods or services, (iii) the customer has not objected to this use, and, (iv) the customer has been clearly and unequivocally advised, when the address is recorded and each time it is used, that he can object to such use at any time, without costs arising by virtue thereof, other than transmission costs pursuant to the basic rates. Because this language was missing in the invitation the sender could not rely on this exemption. This exception equates to the “soft opt-in” saving in Article 13.2 of the Privacy and Electronic Communications Directive 2002/58/EC.
On a side note, the e-mail advertising was actually sent out from a market research company which was instructed by the parent company of the defendant. Yet, the court was of the opinion that the defendant was liable for this behaviour because he actively made his customers’ e-mail addresses available to his parent company, knowing that the addressees had not consented in e-mail advertising.
Why this matters:
It seems that the court would have considered the e-mail invitation as lawful if the disclaimer concerning the right to object at any time had been included. This is interesting because customer satisfaction surveys generally cannot be considered as the advertiser’s “own similar goods and services” (Sec. 7 (3) No 2 UWG). As the disclaimer was not contained anyway the court did not have to give its view on this issue explicitly. Thus, in order to be on the safe side, it is still recommended to invite customers to surveys (or any other rating) only if they have given their respective consent explicitly in advance.
Apart from the fact that sending out advertising e-mails without prior explicit consent of the recipient is considered as unfair business behaviour, this also gives rise to a violation of recipients’ individual rights. As in this particular case, competitors and also individuals may not only seek cease and desist and reimbursement of lawyers’ fees but may also claim damages from the advertiser. It is not a valid excuse that actually a third party sent out the e-mail.
