So far, the law on unfair competition has actually been clear. If a consumer has not expressly consented to an advertising call, this must be refrained from. So much for the theory based on the legal basis. Unfortunately, the practice is far different. More and more consumers are being harassed with advertising calls through the use of automatic dialing machines.
Legislative initiative against “cold calls”
The Federal Council recently reacted to so-called “cold calls”, i.e. advertising calls without prior express consent, by introducing a legislative initiative. With the draft law to strengthen consumer protection in telephone advertising, the federal states are attempting to remove the basis for annoying advertising calls by withdrawing the economic incentive.
In future, contracts from advertising calls should also be approved in writing
According to the new draft law, contracts concluded during a “cold call” will only be valid in future if the consumer approves the offer again in text form. Approval by email would also be sufficient.
If the consumer has previously consented to telephone advertising, the old regulations remain in place. Additional written consent is then not required.
According to the current legal situation, contracts concluded on the telephone during an advertising call are generally valid. This is because the law against unfair competition in Section 7 para. 2 No. 2 UWG only prohibits advertising calls without consent (opt-in). However, consent must be given before the actual advertising call concluding the contract. Consent at the beginning of the telephone call is not sufficient. In addition, the telephone number of the advertiser may not be suppressed. Fines of up to 300,000 euros have been imposed to date.
How to protect yourself as a consumer from telephone advertising
The best way to protect yourself from advertising calls is and remains prevention. Therefore, make sure that you do not consent to telephone advertising. You should also pay close attention to when it is mandatory to provide your telephone number and when it is not. If it is not mandatory, we recommend that you do not provide it.
But how can you protect yourself from advertising calls once your own telephone number is in circulation? – Unfortunately, the current legal situation makes it difficult. Nevertheless, the correct handling of advertising calls is a small possibility to have a little more peace of mind in the future; at least from the same advertising provider.
The caller should be confronted proactively. It is advisable to ask for the name of the caller, their company and the reason for the call. A friendly request to remove your own number from the mailing list and the information that you have not consented to the telephone advertising can also help.
Blocking of advertising call numbers
Alternatively, you can also ask your telephone provider not to put through (block) such numbers or to block suppressed numbers completely.
Such blocking can sometimes also be carried out in your own router, e.g. a “Fritzbox” or a “Speedport”, with just a few clicks. However, providers of mobile phone tariffs now also offer the option of blocking numbers.
Complaint to the Federal Network Agency
If these measures are unsuccessful, you should forward the data collected on the name of the caller, the company and the telephone number to the Federal Network Agency in the form of a complaint. This can either be done electronically using a form or by email to rufnummernmissbrauch@bnetza.de.
Assignment of a lawyer
If all these tips come to nothing, the only way out is to contact a lawyer. Advertising calls without prior consent constitute unlawful harassment that can be stopped. For the private consumer, it is an encroachment on their general personal rights; for the business owner, it is an encroachment on their established and exercised business operations. This interference can often be ended with the help of a letter from a lawyer (request to submit a cease-and-desist declaration with penalty clause).
By submitting a corresponding declaration, the advertising caller promises to refrain from making such calls. At the same time, he also undertakes to pay a contractual penalty in the event of repeated advertising calls.
However, if the company concerned does not respond to the letter, the harassed party can take the matter to the ordinary courts. The costs of instructing a lawyer – both for the cease-and-desist declaration and for the legal action – can be claimed as compensation from the advertiser. This means that the person affected often does not incur any costs for their actions.
This article is part of our blog series on the topic of telephone advertising. In it, we show you which points companies and consumers should bear in mind with regard to telephone advertising and how you can protect yourself against legal infringements. We have already published articles on the legal changes regarding advertising companies and the requirement for consent.