The online service “Werbestopper.de” aims to achieve with just a few clicks what some “no advertising” stickers are unable to achieve.
This could be the GDVI’s undoing.
Now even the Wettbewerbszentrale is suing.
Werbestopper.de: A special kind of adblocker
Werbestopper.de is an online service provided by the Gesellschaft zur Durchsetzung von Verbraucher-Interessen GmbH (GDVI).
It promises to keep annoying and unwanted paper advertising out of your letterbox; an adblocker for the analog world, so to speak.
Blacklist and whitelist: No more unwanted advertising
At werbestopper.de, consumers can register free of charge with their full name, home address and email address.
The online service then uses the zip code to identify all potential advertising companies and creates a list, the so-called “blacklist”.
Consumers can now decide for themselves whether all these listed companies should be covered by the advertising ban.
Alternatively, it is also possible to allow so-called “optional advertising” from the list and thus exclude individual companies from the advertising ban.
These companies are then placed on the “whitelist”.
According to section 2 lit.
a) paragraph 2 of the GTC on Werbestopper.de, the “Werbestopper” service then transmits the advertising bans to the selected companies as a messenger.
At the same time, the service includes free referral to GDVI cooperation lawyers if the companies oppose the objection submitted.
In the event of an “infringement report”, GDVI will, if necessary, put the user in touch with a GDVI cooperation lawyer, whom the user can then instruct to legally enforce the advertising ban.
The user consents to being contacted for this purpose.
The user can revoke his/her consent at any time.
We will leave a big question mark over whether this mediation by lawyers is legally tenable.
In any case, these mediated lawyers should then be able to be commissioned with the legal enforcement of the advertising ban by the customer.
They send warning letters to the respective companies with questionable counter-values and a request to submit a cease-and-desist declaration with a penalty clause.
Proof of legitimacy by werbestopper.de questionable
It is true that the GDVI sends the advertising bans to the respective companies.
However, such a letter does not provide the necessary legitimation.
Pursuant to Section 174 of the German Civil Code (BGB), a unilateral legal transaction carried out by an authorized representative vis-à-vis another party requires the presentation of a power of attorney.
The fact that, according to the GTC, GDVI only wishes to act as a messenger and not as an authorized representative is probably irrelevant in this respect.
The requirement to present such a document applies accordingly to the appointment of a messenger.
In particular, it must be critically questioned whether this form has been observed with the mere online registration.
Since it is sufficient to simply enter the data and it cannot be ensured that this is actually done by the person specified there – let alone that the GDVI subsequently confirms the necessary information itself – the current procedure is at least legally questionable.
Privacy policy at werbestopper.de makes you sit up and take notice
It is only at second glance and on closer inspection of the terms and conditions and the privacy policy that it becomes clear that the personal data provided on Werbestopper.de not only remains on the site, but is (directly) passed on to third parties.
On the one hand, the data is received by the GDVI’s cooperation lawyers as well as “third parties”.
Among other things, the data is forwarded to Reachsome AG, based in Switzerland, in order to be included in a so-called advertising ban database.
However, it is not clear from the privacy policy what exactly is meant by this.
Considering that a “no advertising” sticker has at least the same legal relevance as the transmission of the advertising bans by Werbestopper.de to the companies, without personal data being passed on, one could certainly question the “altruistic”, since free, offering of the GDVI service.
In addition, the consumer should agree to the following:
Permission for e-mail advertising: “I agree that the GDVI may inform me by e-mail about its services and offers.”
This means that the analog advertising of others is exchanged for e-mail advertising from GDVI if the consumer does not object.
Wettbewerbszentrale conducts warning proceedings against “Werbestopper.de”
It remains to be seen whether Werbestopper.de is a business idea that will establish itself in the future.
However, the general response on the Internet is negative.
Skepticism prevails.
In a press release dated 10.11.2016, the Wettbewerbszentrale announced that it was initiating warning proceedings against GDVI due to the online service Werbestopper.de.
This is based on misleading advertising statements and violations of applicable data protection law.
According to the Wettbewerbszentrale, the advertising contradictions are not legally effective.
The advertised service could therefore not be provided at all.
The transfer of personal data to Switzerland also constitutes a breach of the Federal Data Protection Act, as the purpose and subsequent use of the data is unclear.
For a company that advertises itself by issuing warnings to other companies, the warning addressed to it comes across as a slap in the face and thus counteracts its own actions.
We also consider the GDVI’s approach to be more “appearance” than “reality”.
The opinion of the Wettbewerbszentrale is therefore completely understandable.
Consumers are being lured to a company with promises that, in our eyes and in the opinion of the Wettbewerbszentrale, is acting in a legally questionable manner and it is also questionable whether the promises can be legally kept at all.
The proceedings with the Wettbewerbszentrale are therefore very interesting and we will report on the outcome.