Was a German lawyer being too clever when he pressed for the Frankfurt prosecutor to bring criminal damage proceedings against a fax marketer?
Topic: Fax Marketing
Where: Regional Prosecutor of Frankfurt am Main
When: December 2001
What happened:
A German lawyer received an unsolicited marketing fax. He regarded the unwanted use of fax paper and toner as damage to his property. So he started legal proceedings. In December 2001 the Regional Prosecutor of Frankfurt am Main refused to raise an accusation against the fax sender. He decided that the use of fax-paper against the will of the receiver does not lead to punishable damage to property.
The Prosecutor pointed out that the special economic purpose of fax paper lies in its use for receiving fax messages. As a basic principle of German criminal law no damage to property can be seen in doing no more than using something as it was intended. Simply that the use takes place against the desires and/or interests of the owner is not sufficient for assuming a criminal offence.
Why this matters:
The prosecutor's decision only concerns the question whether in unsolicited sending of a fax a punishable action can be seen. Probably he would have decided differently if the sender had sent a lot of content and used a lot of toner and paper.
A separate point is that from the perspective of German competition and civil law the answer to the question as to whether the unsolicited sending of a fax is legally admissible is completely different:
In accordance with the permanent jurisdiction of The Federal High Court of Germany, marketing by way of unsolicited sending of faxes is basically an unreasonable advertising form. In contrast to advertisements by mail, the receiver of fax advertisements must keep the fax machine (incl. paper and toner) constantly ready for use. Additionally the fax machine is temporarily blocked during the receiving of the advertising fax. For these reasons a fax sender can't assume that his addressee generally agrees with receiving a fax.
Only if the receiver of the fax has expressly agreed with the transmittal or if this agreement can be assumed by means of other factors, is it permissible to send advertisement faxes. This is for example possible when a business relationship already exists or if press releases urgently have to be sent out. But for the acquisition of new clients the fax can never be compliantly used because this purpose can also be achieved with a normal letter.
If companies offend against these competition rules a competitor or a private addressee of an advertisement fax can complain and damages can be awarded. In this regard it doesn't make any difference whether one or more unsolicited fax has been sent out.
