With the draft law to strengthen consumer protection with regard to telephone advertising, the federal states are attempting to restrict advertising calls, which many people find annoying. As already reported, there are a number of ways for those affected to defend themselves against unauthorized advertising calls. As an affected company, this means warnings, cease-and-desist declarations, lawsuits and sometimes high costs for these proceedings.
In order to avoid such costly disputes, advertising companies should familiarize themselves with the requirements for permissible advertising calls and strictly observe them.
No telephone advertising by companies without consent
In principle, advertising calls require the prior consent of the person called. This applies not only to advertising to consumers, but also to advertising to other companies. This is because telephone advertising is always permitted if the advertising company has previously obtained verifiable consent for this form of advertising from the addressee.
However, the requirements for consent differ for consumers and companies. Consumers (B2C relationship) must always give their express consent (opt in). For advertising calls to other companies (B2B relationship), “presumed consent” is currently often still sufficient. However, depending on how the personal data is processed, this could change as a result of the GDPR.
Presumed consent – stricter than many companies assume
However, the requirements for presumed consent are also very strict. This can only be assumed if the content of the advertising telephone call concerns the core business of both companies. This is illustrated by a brief example: An advertising call to a print shop (as a company) in order to submit offers for paper concerns the core business of both companies and is therefore permissible on the basis of presumed consent.
The situation is different if paper is advertised to a car dealership by telephone. Although a car dealership also needs paper for its business operations, this is probably not part of the core business of either company. Presumed consent would therefore not be assumed here.
In addition, consent must be given before the advertising call is made. Obtaining consent only at the beginning of the advertising call is not permitted and also leads to harassment of the called party.
But how do you obtain consent from consumers or companies? In the case of companies, a business contact is often sufficient. If you have received the telephone number or email address as part of this, advertising relating to the core business is permitted. Unless the person concerned has expressly opted out.
Explicit consent of a consumer
The consent of a consumer (B2C) is much more difficult to obtain. It should be noted here that consent is not requested by email. This is because advertising by email – even to obtain consent – is as strictly regulated as telephone advertising. A letter with a reply card or direct contact with a signature, for example at a trade fair or other public advertising event, is more suitable.
Within the consents, it must be clear which media are covered by the consent. This is because it must be unambiguously clear to the consenting party what they are giving their consent for. This means that a simple formulation for the general sending of advertising is far from sufficient.
Caution when handling personal data
At this point, however, another danger lurks for the advertising companies. The telephone numbers and email addresses received are personal – and therefore regularly personal – data. This data must be stored and managed with particular care. If the advertising company employs more than 9 people for the automated processing of personal data, it needs a data protection officer. The same applies to companies that employ at least 20 people who collect, process or use personal data in other ways. A data protection officer is almost always required when handling particularly protected forms of personal data (e.g. medical data).
Changes to concluded contracts as a result of the new draft law
If the telephone advertising – despite the lack of prior consent – leads to the successful conclusion of a contract, this must also be confirmed in text form in future. The concluded contract must be sent to the other contracting party in text form (email or letter) and the latter must also confirm the conclusion of the contract in text form.
Federal Network Agency plans mandatory documentation
The Federal Network Agency also no longer wants to tolerate unauthorized advertising calls. In order to stop the calls, it is planning a documentation obligation for call centers. This is intended to ensure that any evidence is available immediately in the event of a dispute.
In addition to the management of personal data, this also leads to a high administrative burden for companies.
In order to meet all the requirements for telephone advertising, it is often worth seeking legal advice before such an advertising initiative. In this way, possible warnings and lawsuits can be ruled out in advance. At the same time, only those people who have consented to advertising are courted, which in turn means that those affected are not annoyed and the company’s image is not damaged.
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 consider with regard to telephone advertising and how you can protect yourself against legal violations. We have already published articles on new consumer protection legislation and the requirement for consent.