Companies that advertise with telephone calls bear the burden of proof for the existence of the prior consent of the solicited customer. This was decided by the Higher Regional Court of Munich in its ruling of January 26, 2017 (case no.: 29 U 3841/16). The court thus attaches more importance to the statement of a lawyer who defended herself against telephone advertising than to the advertising company.
Advertising company obtained telephone number without consent
The two companies involved in the proceedings normally broker electricity and gas contracts. The advertising company received personal data of the witness, who worked for the company as a lawyer, in the course of business relations. This also included her private cell phone number.
An advertising call with commercial interest
Some time later, this lawyer received an advertising telephone call in which a third-party company was advertised to her as an electricity supplier. The telephone call was aimed at concluding a corresponding electricity supply contract.
The lawyer took action against the telephone advertising together with her company and obtained a temporary injunction from the Augsburg Regional Court (judgment of 25.08.2016 – 1 HK O 1485/16). As a result, the advertising company was obliged to stop calling the lawyer by telephone for the purposes of competition in order to convince her of its products.
Appeal against the temporary injunction was initially successful
However, the advertising company then objected to this order. It argued that the lawyer had consented to telephone advertising as part of a competition organized on the Internet at www.gewinne-ein-iphone.de. The data collected as part of the competition was generated using the so-called code-ident procedure. For this purpose, a six-digit code was sent to the competition participant’s cell phone by text message. The competition participant must then enter this code on the competition page to confirm their consent.
Following the oral hearing in the opposition proceedings, in which the parties were heard as witnesses, among other things, the Regional Court revoked the interim injunction and rejected the application for its issuance (judgment of 25.08.2016 – 1 HKO 1485/16).
Appeal before the OLG Munich successful
In turn, the lawyer appealed against this judgment. She repeated and expanded on her arguments from the first instance and requested that the judgment of the Regional Court be set aside.
Telephone advertising: the burden of proof lies with the advertising company
The Munich Higher Regional Court follows the lawyer’s explanations to the letter. As a result, it assumes that the defendant’s telephone call was made without the lawyer’s prior consent. This constitutes unreasonable harassment pursuant to Section 7 para. 2 No. 2 UWG, which must be refrained from in the future.
After assessing the evidence and witness statements, the lawyer’s statement was far more credible. The burden of proof for the existence of express consent lies with the advertising company. Insofar as this evidence is not credible and detailed, the lawyer’s statements must be followed.
She was in a meeting at the time of the “alleged” competition entry and did not have her private cell phone with her. The lawyer was also aware of the consequences of consenting to such advertising measures and would never have consented on this basis. She would have “pulled the ripcord” in the code-identification procedure at the latest and not disclosed any more of her data.
In addition, the lawyer was aware of the criminal and professional consequences of making a false statement in court. In the opinion of the OLG, she would not take this risk for a trial of such minor importance.
Competition operators in particular have an interest in using data that they have received without consent
In addition, it appears credible that the operator of the competition site has a very strong economic interest in selling as many contact details as possible. This could also tempt him to exploit data that he has received without consent for use for advertising purposes.
The ruling by the Munich Higher Regional Court shows that it is worth taking action against telephone advertising. The company was obliged to delete the lawyer’s data in its entirety. This means that the lawyer no longer has to fear further advertising calls. She also does not have to bear the costs of the legal dispute herself, but the advertising company does.
Advertising companies should carefully document consents in future
Meanwhile, advertising companies are advised to carefully document all explicit consents. A mere assertion of this is not sufficient.