May 2017

No Opt-Out Sticker? No Harassment In Nordrhein-Westfalen.

NOTE: EINKAUF AKTUELL is an unaddressed bulk mail circular usually bundled with other junk mail, so you can see the challenge of honoring opt-outs.

A consumer brought suit against Deutsche Post for receiving copies of promotional newsmagazine EINKAUF AKTUELL after allegedly opting-out. After informing Deutsche Post by letter of his desire to be excluded, the consumer received five copies (some years later) of the newsletter.

The court (LG Dortmund) found that plaintiff failed to follow the opt-out instructions provided (attaching a provided “no thanks” sticker to his mailbox). Nonetheless, Deutsche Post made a good-faith effort to block sending. The ‘outliers’ were honest mistakes, and did not constitute unreasonable harassment.

The court ordered the consumer to pay the court costs of €6,000.
jbho: an argument that consent revocation must be express as well?

Interesting that this decision seems to run counter to decisions in Niedersachsen and Schleswig-Holstein, where the courts found that lack of cost effective opt-out was no excuse, and consumers could not be compelled to put stickers on their mailboxes.

BGH, here we come?


April 2017

Opt-Out Applies To Current Email Address Only

The High Court in Berlin recently ruled an individual who had opted-out of receiving emails from a company at his address, did not necessarily opt-out of emails at his address. Thus, although the company was obligated to respect one opt-out, that opt-out need not apply to all email accounts on file for the user.

The court did note that had the consumer specified a list of emails accounts in the opt-out request, all those accounts would need to be opted-out.
jbho: nice if you can provide a preference center where your customers can manage multiple contacts and determine which messages they would like to receive through which channels/accounts.


High Court Clarifies Email Consent Requirements

A complainant sought damages for emails he received after signing up for free software. The sender argued, and a lower court agreed, the complainant had consented, as the forms he completed clearly indicated below the field where he entered his email address (roughly translated):

By clicking the link and initiating the download, you agree to the terms and conditions <hyperlinked>, which include receipt of marketing from us and our partners.”

The link lead to terms stated:

By submitting your personal information, you agree to receive marketing at the email provided from us and these partners <hyperlinked>.”

The ‘partners’ link then led to a list or 26 companies (including defendant).

The high court (Bundesgerichtshof) ruled these clauses to be insufficient, as simply listing third parties was not enough – the types of products to be marketed needed to be clarified as well. Thus the disclosures were too generic to constitute valid consent.

The court did rule it was acceptable for defendant to retain the complainant’s information, as this would be needed to maintain its internal opt-out (‘Robinson’) list, and to comply with the court issued injunction against unsolicited marketing.
jbho: so close! So it looks like getting consent for third-party marketing is an even higher bar than previously expected. It would seem you could intuit the products to be marketed based on a company’s name. But I guess that’s not quite enough in Germany. So make sure you add some brief descriptions of each partner to your third-party marketing page.


March 2017

Unsolicited Customer Satisfaction Survey Emails Are Spam

The high court in Berlin recently ruled that a survey mail asking about consumer experiences related to a recent purchase required prior consent. Since the purpose of survey email was to promote future business, it was an advertisements. Therefore, the sending of such survey ‘advertisements’ without consent constituted harassment, as well as unfair competition under the UWG.
jbho: I haven’t seen copies of the mail, but the decision seems to indicate satisfaction surveys are advertisement by their very nature. The decision here deviates from lower court decision in Berlin, but is consistent with opinions from the high courts in Köln and Dresden. So you might want to add a tick box in your preference center for surveys, and start including unsubscribe links in your survey emails.


Second Mail In Double Opt-In Might Not Spam After All

A recent decision from the Oberlandesgericht in München indicated the second mail in a Double Opt-In process is not necessarily spam. This contradicts an earlier ruling from the same region calling the second mail spam.
jbho: not sure what caused the change of heart. Admittedly, I haven’t seen the email copy. Perhaps it’s a question of what messaging is included in the second mail? Stick to business and you’re safe, but if you try to overload it with marketing content its spam?

Good to see that the double opt-in process may be valid in Germany’s southeastern most state.


January 2017

Second Spam Offence Costs Another €3,000

In 2011, a small business operator received an unsolicited email marketing advertising services. Judgement was awarded in the recipient’s favor, along with a fine of €3,000. In 2014, the same person received another unsolicited mail from the same sender. The court upheld its initial penalty, and awarded plaintiff another €3,000 (~$3,200).
jbho: a reminder that EU spam laws can apply in a B2B context as well.


October 2016

Proof of Consent Required, Consent Expires

A regional court in Bonn ruled that it was not sufficient for a company to claim it used a double-opt-in. An entity relying on consent must be able to demonstrate each user went through the process. Additionally, a consent obtained in 2011 could not be considered valid in 2015 – especially since there had been no activity in the interim four years.

As a result, the sender was ordered to pay the plaintiff €255.55 plus interest and court costs.
jbho: looks like consent expires after four years in Germany.


July 2016

Automatic Opt-In Clause Illegal

An insurance company ran a lottery at a conference. The entry form required entrants to provide contact details (name, address, phone, email), sign the entry, and agree:
Ich bin mit der Speicherung meiner Daten und mit der Kontaktaufnahme (Telefon, E-Mail) zum Zwecke der Information, Beratung und Zusendung von Infomaterial (…) einverstanden.”
The regional court in Konstanz determined that since the form did not permit individuals to choose to receive the aforementioned promotional materials, the marketing consent was invalid, and the form itself illegal.
jbho: a reminder that many international jurisdictions do not permit bundling of consent.


Second Mail In Double Opt-In Not Spam

OLG Dusseldorf has confirmed – despite a contrary ruling in München – a confirmation mail in double opt-in process is not spam.
jbho: what a bizarre circuit split…

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