As the Higher Regional Court of Hamm ruled on 25.11.2016 (Ref.: U 66/15), a contractual penalty promise justifies the payment of a penalty of € 3,000 for sending an advertising email.
Contractual penalty for advertising mail
Two companies were in dispute.
One of them mainly produces and sells advertising media, in particular foil stickers.
It sent a car repair shop an advertising email for the first time in 2011, but without its prior consent.
It then sent the advertising company a warning letter and obtained a declaration to cease and desist with a penalty clause.
In it, the advertising company undertook to pay €3,000 in the event of renewed advertising.
In October 2014, the car repair shop received a new sales offer from the advertising company, despite still not having given its consent.
Dispute the sending of the advertising mail
After being requested to pay the contractual penalty and to submit a cease-and-desist declaration with a higher contractual penalty, the company denied sending another advertising email.
After the lawsuit was filed, the Higher Regional Court of Hamm awarded the car repair shop the €3,000 it had claimed.
After obtaining an expert opinion as to whether the advertising email had been sent, the Higher Regional Court of Hamm confirmed the first instance decision of the Regional Court of Münster (judgment of 14.01.2015 – Ref.: 21 O 102/14).
Following the taking of evidence, there was no doubt that the advertising email sent originated from the advertising company.
The expert was able to trace the route of the electronic mail and rule out any external influence or manipulation.
No reduction of the sentence by the court
According to the OLG Hamm, the contractual penalty could not be reduced either.
This is because the reduction of the contractual penalty pursuant to Section 343 BGB and Section 348 HGB is excluded if the advertising company acted as a merchant within the scope of its commercial business when making the contractual penalty promise.
The amount of the penalty also does not represent a disproportion between the breach and the penalty.
Caution when issuing cease-and-desist declarations
This decision once again makes it clear that cease-and-desist declarations always cause trouble. Before submitting a cease-and-desist declaration with a penalty clause, the content and the amount of the penalty should always be determined in an appropriate manner.
It goes without saying that once the declaration has been issued, care must be taken to ensure that no further infringements are committed.
This article is part of our blog series on the topic of unauthorized advertising by email.
In it, we show you which points companies and consumers should bear in mind with regard to email advertising and how you can protect yourself against legal violations.
We have already published an article on the topic of whether simple requests for information also qualify as unauthorized advertising.