The Federation of German Consumer Organizations had sued a website operator for injunctive relief, among other things. The point of contention was a competition offered on the website. In order to take part in the competition, users had to tick at least one of two checkboxes and thus consent to certain advertising and cookies.

The Federal Court of Justice had to clarify two questions at once: Firstly, the permissibility of consent to telephone advertising and secondly, consent with regard to cookie storage (judgment of May 28, 2020, case reference: I ZR 7/16 – Cookie Consent II). This article will focus solely on consent to (telephone) advertising: We have addressed the cookie issue in more detail in a separate article.

Deliberately complicated selection renders consent to advertising ineffective

The first checkbox concerned consent to advertising and was not preselected. Those who ticked this box were asked to give their consent to receive advertising from up to 57 sponsors and cooperation partners, e.g. by telephone. Users could then specify in a submenu which of the 57 companies they would like to receive advertising from. If the user did not make this effort, the selection was to be made by the defendant company.

With regard to telephone advertising, the BGH objected to the fact that such consent in the context of general terms and conditions was only effectively possible „with knowledge of the facts“. However, the procedure was intentionally designed in such an elaborate way that users waived their right to choose and instead left the choice to the defendant. This was a violation of § 307 para. 1 sentence 1 and para. 2 no. 1 BGB and § 7 para. 2 No. 2 Case 1 UWG. As a result, user consents are invalid.

Certain information must be known for effective consent to advertising

Due to this complicated selection option, which would in fact hardly be used, users would ultimately no longer know which companies they are allowed to contact via telephone advertising. At the same time, it is no longer clear what products and services users would receive advertising for.

Consent in the context of general terms and conditions for telephone advertising is possible in principle (see: BGH, judgment of October 25, 2012, case reference: I ZR 169/10), but only if the following points are recognizable:

• Which company is allowed to send advertising?
• Which goods and services may be advertised?
• What form of communication (e.g. telephone, post, e-mail) may be used for advertising?

No change in the legal situation due to new regulation regarding consent to telephone advertising

The BGH clarifies that the amendment of various directives and regulations has not changed the legal situation itself. § Section 7 para. 2 no. 2 UWG serves to implement Art. 13 para. 3 and 5 sentence 1 of Directive 2002/58/EC (Directive on privacy and electronic communications) and must therefore be interpreted in accordance with the Directive.

This directive refers to the old Data Protection Directive (Directive 95/46/EC) for the definition of „consent“, which has since been replaced by the GDPR (Regulation (EU) 2016/679). However, the concept of consent has remained the same in terms of content and must therefore continue to contain the aforementioned information.