Who: Customer vs. Insurance Company
Where: Federal Court of Justice (BGH), Germany
When: 15 December 2015
Law stated as at: January 2016
A customer (“Customer”) terminated his insurance cover and asked the insurer – vie e-mail – for confirmation of receipt. The customer immediately received from the insurance company (“Insurer”) an auto-reply e-mail with the subject “automatic reply to your e-mail dated 10.12.2013, insurance no.:…/termination“. The e-mail contained the common statement that the Insurer had received said e-mail and would revert to him as soon as possible. In addition, the e-mail contained the following text at the bottom (“End Text”): “By the way: Free weather warnings via SMS to your cell-phone. An exclusive service only for […]. Info and signing-in at www[…]. Now for iPhone users […]. This e-mail was generated automatically. Please do not reply.”
The Customer immediately turned – via e-mail – to the Insurer’s data protection officer and complained that the End Text was advertising and since no relevant prior consent had been given, this was contrary to law. Naturally, he received the same autoreply e-mail again. He complained again and – unsurprisingly – received the autoreply message once again. The Customer demanded that the Insurer cease and desist this practice but the Insurer was of the opinion that this behaviour was not unlawful and refused. The Customer then sued the Insurer.
The local court of Stuttgart considered the End Text to be advertising and held that it was unlawful to communicate this via e-mail against the recognizable will of the recipient. Such behaviour violated the recipient’s personal rights because he had to deal with such messages: He had to view them and sort them and so additional efforts had to be made. Sending out such e-mails was also unlawful in the court’s judgment because the Customer had not given the requisite consent. On the contrary, he had explicitly objected in his second e-mail. (AG Stuttgart-Bad Cannstatt, judgement as of 25 April 2014, docket no. 10 C 225/14).
After the Insurer appealed, the Regional Court of Stuttgart dismissed the local court’s decision. The regional court agreed with the Stuttgart court that the e-mails contained advertising and that unsolicited sending was generally not allowed. However, in this particular case the marketing e-mail was not a typical kind of advertising e-mail, but a mere confirmation of receipt sent out immediately after the Customer’s own e-mail. In order to be considered as unlawful it was required to exceed a certain level of materiality which was not the case here.
The court was of the opinion that the Customer had to open and save the e-mail anyway (in order to check and, as the case may be, later on prove that the Insurer received his e-mail). Thus, no additional efforts had to be made due to the receipt of the e-mail.
Accordingly the Regional Court upheld the Insurer’s appeal.
The Customer appealed against this judgment to the Federal Court of Justice. The Federal Court did not follow the opinion of the regional court and set aside its judgement. The Federal Court ruled that, at least, the last autoreply-e-mail had to be considered as unlawful because the Customer had made very clear that he did not want to receive such marketing-e-mails. This had to be considered as an unlawful violation of the Customer’s personal rights. (BGH, judgement as of 15 December 2015, docket no. VI ZR 134/15).
Why this matters:
Advertising in auto-reply e-mails can easily occur because any promotion of any product can be considered advertising. The definition of advertising is generally very wide according to the German courts. Inserting a marketing message into auto-reply emails can also be done all too quickly.
If one is actually out of the office and nobody is monitoring incoming e-mails, this case shows how real the risks can be of getting into difficulties in an apparently harmless situation.
Moreover, sending out advertising e-mails without prior explicit consent of the recipient is not only a violation of recipients’ individual rights but also generally considered as unfair business behaviour according to Sec. 7 (2) No. 3 UWG (German Act Against Unfair Competition). Consequently, in Germany imprudent use of auto reply can lead to receiving warning letters from competitors or certain associations (e.g. for protection of consumer rights or against unfair business behaviour) in Germany. Also, competitors may not only seek cease and desist and reimbursement of lawyers’ fees but may also claim damages.