In its ruling of November 24, 2016, the Higher Regional Court of Frankfurt am Main decided that a business request by email can certainly constitute harassing advertising (case reference: 6 U 33/16). However, an exception to this applies if the addressee of the solicitation has agreed to be contacted in advance on their website and publishes their email address there.
Lawyer agrees to be contacted
A lawyer ran a kind of online blog on which he made all the articles he wrote – which were also published in various specialist journals – available to the public. He also inserted the following text passage above his articles:
…I write for various magazines and club journals. If you would like to print my articles (including commissioned work), please contact me…
He was then emailed by a shareholder and associate partner of another online blog with the following words:
…With reference to your article “…″ through which I was able to become aware of you, I would like to suggest a cooperation between your blog and ours. This would, of course, also result in a multiplier for you and your interests. We can also write new articles together with you or find additions…
However, the lawyer considered this form of contact to be “spam” and unauthorized advertising and demanded that the author submit a cease-and-desist declaration with a penalty clause. The demand was based on the fact that the lawyer did not operate an online blog and that the solicitation was therefore inadmissible.
Commercial demand action can be unreasonably harassing advertising
However, the OLG Frankfurt a.M. disagrees with this. Making contact by email does not constitute unauthorized advertising. It is true that unsolicited advertising e-mails can certainly constitute an infringement of the right to set up and operate a business and justify a claim for injunctive relief. However, the prerequisite for this is an unreasonable harassment by advertising in the form of emails in accordance with Section 7 para. 2 No. 3 UWG. However, express consent to being contacted excludes unreasonable harassment.
OLG leaves open the classification of demand actions as inadmissible advertising
The OLG left open the question of whether the shareholder’s contact really qualified as unauthorized advertising. Even if it regularly regards commercial inquiries without prior consent as harassing advertising (BGH, judgment of 17.07.2008 – I ZR 75/06).
In the opinion of the Higher Regional Court, the qualification as advertising is not relevant in this case. After all, the lawyer had expressly consented to being contacted by providing information above his posts. The consent had also been given (1) without coercion, (2) for the specific case and (3) in full knowledge of the facts.
The burden of proof for express consent always lies with the advertising company.
Consent too broad – Lawyer consents to demand advertising
Even if the lawyer’s text was very broadly worded, the OLG emphasized that the statement referred to a variety of reasons for contacting the company and that this was also recognizable to outsiders. Anyone who is prepared to receive emails asking for their articles to be printed must also be open to emails offering to publish the articles elsewhere online.
However, it cannot be concluded from the ruling that a provider of goods or services expressly consents to harassing advertising through commercial inquiry emails that are somehow related to their offer simply because they disclose their contact details on the internet. This assessment still needs to be weighed up on a case-by-case basis.
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 consider with regard to email advertising and how you can protect yourself against legal violations. We have already published an article on Contractual penalty for repeated e-mail advertising.