Following a basic judgement of the German Federal High Court (BGH) in spring 2004 (judgement of 11.03.2004, I ZR 81/01), it is undisputed, that sending advertising e-mails without the previous consent of the receiver violates the law of unfair competition. This is now expressly stated in Sec. 7 of the German Act Against Unfair Competition, which was amended in July 2004. By this, the legislator followed a constant german jurissdiction and decided for the so called "Opt-In"-model for advertising e-mails. This means that the customer must give his express consent for receiving advertising e-mails, otherwise they are regarded as unlawful "unreasonable annoyance". This article deals with the questions, how to structure the sending of advertising e-mails in order to comply with these regulations and, under which circumstances advertising e-mails may be sent even without the explicit consent of the recipient.
1. Problems of proof with the „Opt-In“-model
The sender of an advertising e-mail must state and prove that in the concrete case the customer gave his consent, which excludes unlawful competition. However, the sender's statement that he generally does not send unsolicited advertising e-mails, is not sufficient. The sender must prove in the concrete case that he had the customer's consent for sending e-mails. According to the decision of the BGH, there can only be a proof, if the sender guarantees by suitable measures that there can be no incorrect sending of e-mails, e.g. when an address is typed in incorrectly. The sender would also be obliged to check the identity of the receiver, e.g. by verifying the indicated e-mail-address with the address through which the advertising was requested. This obligation would not be met by the possibility to unsubscribe from future mailings with a click on a link, which is embedded in the advertising e-mail. As also other courts previously decided, this would bear the risk that the address could be marked as "active" so that even more unsolicited e-mails would be send to it.
For the sending of advertising e-mails this means:
Technically there are different methods for declaring the customer's consent: The internet user fills in his data (e.g. name and e-mail address) in a prepared web form and sends it off by clicking on a send-button („Opt-In“). The addressee thereby gives his consent to receive newsletters or other electronic mail. With the „Confirmed Opt-In“-method, an automatic confirmation message is sent to the user, after he submitted his data. „Opt-In“ and „Confirmed Opt-In“, however, connot prevent, that the user receives unsolicited e-mail. Both methods cannot avoid abuse by unauthorized people, who use the data of other people without or against their will. With the „Double Opt-In“-method the prospective customer only receives a greeting message, after his data was submitted. In that message he is asked to click on a link. Only by clicking on this link, his e-mail address becomes activated for future advertising. This prevents a use of the e-mail addresses without the receiver's consent. The „Double Opt-In“-method allows the user to reject advertising e-mails by simply not confirming the link. Only the „Double Opt-In“-method seems suitable to meet the legal requirements and to prove the receiver's consent. Hoewever, already this greeting message can be unsolicited. It should therefore have now long advertising text but be limited to the concrete procedure of getting the consent.
2. Exceptions from the „Opt-In“-model
In the context of an existing customer relationship, Sec. 7 Para. 3 UWG states an exception to the requirement of an explicit consent, which is very important for advertising enterprises. Until an existing customer does not forbid the sending of advertising e-mails, the dealer is allowed to advertise for similar products or services by e-mail. In this case the „Opt-Out“-model is applicable, which means that the customer has to declare his express opposition with receiving such advertising e-mails. This means a privilege for the advertising enterprise and grants interesting possibilities for direct marketing. However, the legality of such an advertising e-mail is subject to several conditions.
Without the explicit consent of the receiver, e-mail advertising is only allowed, if:
- the users e-mail address was obtained „in connection with the sale of a good or service“. The address must have been obtained directly from the customer, not through addres-dealers or cooperating dealers. It is very important, that a sales-contract with the customer has already been closed previously. It is insufficient, if the user had just asked for some information, but not yet ordered the good or service! If the e-mail-address had been used for closing the contract (e.g. booking by e-mail or giving the address during a telephone booking), a connection is clearly given. If the address was, however, only obtained on the termination of a business relationship (e.g. revocation or cancellation of an order), the condition of an existing customer relationship is not given (anymore). If a dispute arises, the sender of an advertising e-mail has to prove that he legally obtained the e-mail address.
- the e-mail address is only used for the enterprises own „similar“ goods or services. The similarity of the goods or services in question is of central importance. Only, if there is a connection to the previous transactions with this customer, an interest of the customer in advertising for further products can be assumed. With the new UWG, the borderline between such a permitted advertising e-mail and unreasonable annoyance is very narrow. In the area of travel business, e.g., it would probably be permissable to send advertising for a hotel holiday in Sicily to a customer who already booked a hotel holiday in Austria (such is an express example in le legal literature). Whether, however, this would also entitle the travel operator to send e-mail advertising for an expensive ship cruise or a round trip through the USA, could be discussed seen different. There is no jurisdiction on that issue available at the moment.
- the addressee did not oppose to such an use of his e-mail address. This opposition can be submitted in any kind of communication but has to take reference to the advertising e-mail and has to have reached the dealer. Using the e-mail address following such an opposition, this would be regarded as unreasonable annoyance as well as a violation of unfair competition legislation.
- the customer is informed clearly at the collection of the address and at every use of it, that he can oppose the use of his e-mail address for advertising purposes at every time and without any costs for the opposition, except from the basic tariffs. The customer has to be given the opportunity to declare his opposition at the collection of the address and at every further use of it. This has to be made explicitly mentioned and an e-mail or postal address or telephone or fax-no. for submitting such an opposition have to be given. "Basic tariffs“ means the usual charges for a phone call or fax. All fees or more expensive phone numbers (e.g. in Germany 0190) exceed these tariffs and limit the possibilities for an opposition and therefore of an duty based on the UWG. According to the UWG, it would therefore be regarded as unreasonable annoyance. This information to the customer is not allowed to be hidden and has to be understandable and certain. E.g., the following wording would be possible:
„We send our cost-free newsletter to the e-mail address that you have given to us, in order to keep you informed about our future newest offers. You can oppose the receival at any time by sending an e-mail to firstname.lastname@example.org without costs arising other than the submission costs based on the basic tariffs.“
In a nutshell, it can be summarized:
- Only such people may receive advertising e-mails, who have already closed a contract with the enterprise. Addresses, which have been obtained due to nin-binding, preliminary inquiries, do not fall under this scope.
- The enterprise must have obtained the address in connection with the closing of the contract or with its fulfilment (not only at the termination or revocation).
- Only „similar“ goods or services may be subject of the advertising.
- Already when collecting the e-mail address, the enterprise must have informed the customer about his right of oppisition.
3. Time limit of the consent/exception
Finally, it has to be pointed out, that even a consent that was given by the customer, is not valid for all times. The District Court of Berlin, e.g., decided, that the initial sending of an advertising e-mail two years, after the addressee's consent was given, is not anymore covered by that consent (judgement of 02.07.2004, 15 O 653/03). However, this judgements concerns only the case, in which the customer received an advertising e-mail of "his" dealer after two year for the first time. This does not mean, that an e-mail address, to which regularly advertising e-mails are sent, has to be de deleted from the list of recipients after 2 years.
This would probably have to be applied to the exeption of Sec. 7 para. 3 UWG accordingly: only, if the first advertising e-mail is sent to the customer within a reasonable time after the underlying sale, the enterprice can make use of the „Opt-Out“-model.
© 2005 Jens Barkemeyer