Section 7 of the Unfair Competition Act (UWG) declares any commercial activity that unreasonably harasses another market participant to be unfair. The main area of application is the various forms of direct marketing. On the one hand, consumers and their privacy are to be protected. On the other hand, tradespeople and their undisturbed business and operational processes.
A commercial act is considered harassing if it is imposed on the recipient and is already perceived as annoying due to its nature and manner, i.e. regardless of its content. Whether this harassment is also unreasonable must be determined in a comprehensive balancing of interests. However, no high requirements are set here. Even the first direct advertising may be inadmissible.
Objection by the recipient = unreasonable harassment
Depending on the form of advertising, the will of the recipient of such advertising was weighted differently by the legislator and given special importance. A distinction must be made between the following possibilities:
- Opt-in solution: Advertising is only permitted with consent.
- Soft opt-in solution: Advertising is only permitted with presumed consent.
- Opt-out solution: Advertising is permitted, but the recipient can object.
An objection by a recipient is always acceptable and must be taken into account. This can also be done, for example, by registering in the so-called Robinson list at the German Direct Marketing Association or by placing notices on the letterbox.
However, if consent is required, the sender must prove this accordingly. For example, by using a suitable double opt-in procedure for email advertising. Consent per GTC will only be legally effective if the recipient has actively selected this, e.g. by ticking a box.
Principle: Certain forms of advertising are unreasonable harassment under competition law
In addition to the general regulation in Section 7 (1) UWG, paragraph 2 sets out special regulations for various forms of advertising. If these are not complied with, this always constitutes unreasonable harassment within the meaning of competition law. These special regulations concern
- Letter advertising (individually addressed) and letterbox advertising (unaddressed direct mail)
- Telephone advertising
- E-mail, fax, voice mail and SMS advertising
In addition, Section 7 (2) No. 4 UWG stipulates special information obligations for all forms of advertising. For example, the recipient must be able to recognize the identity of the sender.
Forms of advertising that are not specifically regulated in paragraph 2 shall be assessed on the basis of the principle in paragraph 1: Advertising must therefore never be unreasonably annoying. This also applies, for example, to door-to-door advertising, addressing the public, windshield wiper advertising and the sending of unsolicited goods.
Exception: e-mail advertising not an unreasonable nuisance in some cases
In cases of e-mail advertising (“electronic mail”), Section 7 (3) UWG makes a special exception. Although email advertising is actually unfair under Section 7 (2) No. 3 UWG without the express consent of the recipient (opt-in solution), it may still be permissible under competition law under certain conditions. However, unreasonable harassment can only be denied if
1. an entrepreneur has received the customer’s electronic mail address in connection with the sale of goods or services,
2. the entrepreneur uses the address for direct advertising for his own similar goods or services,
3. the customer has not objected to the use and
4. the customer is clearly informed when the address is collected and each time it is used that he or she can object to its use at any time without incurring any costs other than the transmission costs according to the basic rates.
§ Section 7 (3) UWG
All four requirements must be met together. If only one is missing, e-mail advertising without the consent of the recipient will also be considered unreasonable harassment and therefore an unfair commercial act.
In addition to competition law, other claims are also conceivable in cases of unreasonable harassment
Not everyone who is unreasonably harassed by advertising or other commercial activities can take action against this under competition law. Consumers in particular, but also companies that are not competitors, lack the necessary legitimacy to take action. Nevertheless, those affected are not defenceless against unreasonable harassment. On the one hand, there is the option of drawing the attention of third parties to their competition law claims, e.g. informing consumer protection associations or competitors. On the other hand, those affected are often entitled to injunctive relief in accordance with Sections 823 and 1004 of the German Civil Code (BGB). Claims under data protection law may also be conceivable.
In cases of unreasonably harassing advertising from abroad, this is also governed by German competition law, provided it is (also) directed at German customers. In these cases, the effective prosecution and enforcement of claims poses the greater problems in practice.
