Email marketing cases and trends in Germany

07 March 2005

Dr. Sibylle Gierschmann LL.M.

The EU Directive 2002/58/EC on privacy and electronic communication provides that direct marketing via e-mail requires the prior consent of the recipient unless:

(i) the contact details were received in the context of the sale of a product or service

(ii) the company uses the address to market its own similar products and services

(iii) the customers are given, in a clear and distinctive manner, the opportunity to object both at the time their details are collected and every time a message is sent

In Germany, even before implementation of the Directive, case law had prohibited unsolicited e-mails. Generally claims were based on Tort or on the Unfair Competition Act. Only last year, the Federal Supreme Court confirmed that the sending of an electronic newsletter without consent and which also contained advertising, was to be regarded as “unreasonable molestation” and therefore infringing unfair competition law (decision dated 11 March 2004, Az. I ZR 81/01). Interestingly, because the claim was brought by a competitor, the court’s decision prohibited the sending of general unsolicited e-mails, instead of limiting its judgment to the relevant addressee. We believe the judgment did not receive much notice because its effects have been overlooked. In detail:

On 8 July 2004 Germany implemented Directive 2002/58/EC (“the Directive”). Even though the Directive mainly focuses on personal data and the protection of privacy, the rules concerning direct marketing were implemented in the Unfair Competition Act. The effect is that even in cases where consumers are concerned, claims can now be based on unfair competition law. Furthermore, consumer protection associations qualified under the law have a right to file claims under the Unfair Competition Act.

Until recently, direct marketing in Germany had been a growing industry despite the restrictive case law on unsolicited e-mails. This was because competitors did not usually file claims against each other and companies would deal with consumer complaints on an individual basis, e.g. by deleting the person from the file. However, now that Article 5 of the Directive has been implemented in the Unfair Competition Act, it is likely that more and more direct marketing companies will receive injunctions demanding that they do not send unsolicited e-mails at all. In fact, such injunctions have already been obtained by a consumer protection agency. In light of this it will be particularly interesting to see how the exception to the opt-in requirement will be handled. For example, what kind of goods and services will be regarded as similar? One suggestion is that someone who ordered a hunting gun might receive advertising on ammunition and telescopic sights but not on hunting clothing.