Is the use of advertising blocks justified?
E-mail advertising made easier for existing customers
Direct marketing by email has not only been permitted under strict conditions since the General Data Protection Regulation came into force. The legal relief for e-mail advertising towards existing customers is therefore gaining in importance. According to a current ruling by the Munich Higher Regional Court, this exception is now also applicable to free, so-called freemium offers.
The plaintiff, a consumer association, turned against a leading partnership exchange which, after registering free of charge, sent its users an email with the offer of fee-based membership without first obtaining their express consent by means of the so-called double opt-in procedure . At the partner market of the defendant, you could register for free by specifying your gender, date of birth, city, pseudonym, password and email address. Due to the free registration, the user can see photos of other partner seekers registered with the partner exchange, but cannot contact them himself. The district court held the e-mail advertising for the fee-based membership to be permissible and dismissed the complaint of the consumer association.
The appeal of the consumer association is unsuccessful. The court of appeal considered the email at issue to be justified with reference to Section 7 (3) of the Act against Unfair Competition (UWG). According to this, an unreasonable annoyance in the case of e-mail advertising (exceptionally) is not to be assumed if (1.) an entrepreneur has received the customer's electronic postal address in connection with the sale of a product or service, (2.) the entrepreneur uses the address for direct marketing for its own similar goods or services, (3.) the customer has not objected to the use and (4.) the customer is clearly advised when collecting the address and each time that it is used can contradict without incurring any costs other than the transmission costs according to the basic tariffs.
In the present case, in the opinion of the court of appeal, the partner exchange received the user's e-mail address in particular "in connection with the sale of a service" because the free-of-charge registered user was given the opportunity in return for disclosing his or her data view other members' pictures.
The court of appeals also considers the second requirement that the e-mail address of the customers registered free of charge is used for direct advertising for "own similar services" to be fulfilled. The free registration fulfills the same purpose as the paid membership, because both have the goal of finding a partner via the partner exchange.
After all, when the address was collected and each time it was used, the customer was clearly informed that he can object to the use at any time and that no costs other than the basic tariffs would arise for the transmission. The note in the e-mails: "To no longer receive this e-mail, click here", including a corresponding unsubscribe link, is understandable and sufficient for this.
The consequences of the decision of the Munich Higher Regional Court for direct marketing practice should not be underestimated. Even if the advertising options for recruiting existing customers are limited and tied to certain formal requirements, they still represent an effective option for permitted direct mail for the advertising industry, for example in connection with customer satisfaction surveys.
The exception for advertising to existing customers is included in the current proposal for the so-called ePrivacy Regulation even after the General Data Protection Regulation has come into force in the meantime. It can therefore be assumed that this option of e-mail advertising will continue to exist even under the strict data protection regime without the prior express consent of the addressee.
(OLG Munich, judgment of February 15, 2018, Az. 29 U 2799/17)
Dr. Christian Triebe, lawyer, specialist lawyer for commercial legal protection, specialist lawyer for copyright and media law
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