You've got spam - The Payback Decision of the German Federal Court
You've got spam - The Payback  Decision of the German Federal Court

You've got spam - The Payback Decision of the German Federal Court

Newsletter, Englisch, Eine Seite, Howrey LLP Rechtsanwälte

Autor: Dr. Stefan Hanloser

Erscheinungsdatum: 2008


Aufrufe gesamt: 1129, letzte 30 Tage: 1

Kontakt

Verlag

Howrey LLP Rechtsanwälte

Telefon: +49-89-203081-200

Telefax: +49-89-203081-201

Preis: Kostenlos

PDF herunterladen

Unsolicited commercial email messages are not only a violation of netiquette conventions, but are also illegal in EU Member States, which banned commercial spam when implementing the European Directive (2002/58/EC) on privacy and electronic communication. It is common knowledge in Europe that sending promotional emails to individuals requires their prior consent. This is the core principle of the “opt-in” solution as opposed to the “opt-out” approach practised in the Unites States, where sending commercial email messages is generally permitted unless and until the sender has been notified to the contrary by the recipient.

When it comes to putting the opt-in principle into practice, however, there is still a considerable amount of uncertainty. Since the consumers’ consent rate significantly depends on an intelligent wording and design of the consent form or clause, companies are tempted to test the limits of the opt-in requirements.

On 16 July 2008, the German Federal Court handed down a decision on the formal requirements for consumers’ consent in receiving direct marketing emails and SMS. The Federation of German Consumer Organisations brought to court Germany’s leading loyalty card scheme for a practice that is quite common among German companies. Basically, an opt-out checkbox, through which loyalty card participants could decline direct marketing emails and SMS from the scheme operator, was combined with a signature line at the end of the form. Arguably, the participants, when signing the form without having ticked the opt-out box, made a valid opt-in declaration for future commercial emails and SMS.

The Munich Higher Regional Court overturned the Munich Regional Court’s decision in favour of the consumer groups. Now, however, the German Federal Court has finally ruled that signing a form or clicking an “accept” button without having ticked an opt-out checkbox does not meet the threshold for a valid consent as required under German unfair competition law. The Court relied on the wording of Recital 17 of the Directive, which requires a “specific … indication of the user’s wishes”. Thus, the judges held, not ticking a checkbox cannot be qualified as specific consent, even if the form is signed or acceptance given by clicking a button.

As a consequence, companies will have to change their printed forms and web sites and move to an unqualified opt-in. Since the German Federal Court explicitly refers to the wording of a European Directive, courts in other EU Member States might simply adopt this approach, or refer the question to the European Court of Justice for a preliminary ruling under Article 234 of the EC Treaty.

Publikationen: 28

Veranstaltungen: 8

Aufrufe seit 10/2009: 2068
Aufrufe letzte 30 Tage: 1