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Telephone solicitation attempt can also be anti-competitive under mobile number

Anyone who does not make sure that the employee is not at work at the beginning of a telephone solicitation attempt is acting unfairly.

In its decision, the Higher Regional Court of Frankfurt a.M. had to deal with the question of whether contacting an employee by telephone to entice them away using their mobile number can also be unlawful under competition law (decision of August 8, 2019, Ref.: 6 W 70/19).

Telephone solicitation attempts on landline numbers inadmissible …

The question of whether such a solicitation attempt using the employer’s (landline) telephone number is inadmissible has already been decided. The case law in this respect considers this to be an unlawful interference in the employer’s business processes, so that the employer can defend itself against this accordingly.

… under the mobile number possibly also

If contact is now made using the employee’s personal mobile number – as in the case in question – this may also be inadmissible. The OLG makes a decisive decision as to whether the caller asks at the beginning of the call whether the employee is at work or not. If the employee answers in the affirmative, the call must be ended immediately. The call can only be continued if the employee truthfully denies that they are at work.

Injunctive relief and cost burden in the event of attempted solicitation after an amount in dispute of € 100,000.00

In the case decided, however, this was not the case. The employee called was at work, the telephone call lasted twelve minutes and no enquiry was made at the beginning of the call as to where the employee was located. Accordingly, the OLG assumed the existence of a claim for injunctive relief under competition law for this constellation and also ordered the caller (or the defendant in these proceedings) to pay the majority of the costs of the proceedings. The high amount in dispute of € 100,000.00, according to which the costs of the proceedings are calculated, is noteworthy.

Asking for the location of the called party is mandatory

All headhunters should therefore be advised that when calling a mobile number, it is mandatory to check in advance whether the person being called is at work. If the employee confirms that they are at work, the call must be ended immediately. Otherwise, there is an urgent risk that the call may constitute an unfair interference with the employer’s business operations.

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