Telephone advertising is an indispensable form of direct marketing. This is because it allows a company to respond directly to the wishes and questions of its (potential) customers. At the same time, the costs for this have continued to fall in recent years. Nevertheless, German and European legislators have long placed special restrictions on telephone advertising in competition law with various regulations.

Consent to telephone advertising is mandatory under competition law

According to § 7 Abs. 2 No. 2 UWG, a distinction must be made between consumers and other market participants in the case of telephone advertising. Anyone wishing to use telephone advertising to consumers requires their prior and express consent (so-called opt-in solution). In contrast, presumed consent is sufficient for other market participants (soft opt-in solution). When using automatic calling machines, according to Section 7 para. 2 No. 3 UWG, prior consent is required in any case. So-called cold calls to acquire new customers are therefore only possible to a very limited extent.

The obligation to obtain prior consent does not apply if, on the other hand, the consumer calls the business. If advertising for the company’s services is made in such a telephone call – e.g. also through tape announcements during any waiting time – this is generally permissible. However, such advertising can still constitute an infringement of competition law as unreasonable harassment pursuant to Section 7 para. § 7 Abs. 1 UWG. However, this must be examined on a case-by-case basis.

Effective consent also possible via GTC

Obtaining effective consent poses considerable challenges for many entrepreneurs. In order to prove consent, the advertiser must document the specific declaration of consent (BGH, judgment of February 10, 2011, case reference: I ZR 164/09). If the advertiser cannot provide specific and unequivocal proof of consent, consent is deemed not to have been given (OLG Frankfurt, judgment of December 4, 2012, case no.: 6 U 133/11).

In principle, consent can also be given effectively via general terms and conditions. Consent must always be given actively. In the context of GTCs, this can therefore be done, for example, by means of an unchecked checkbox. Even in the case of consent via GTCs, the consenting party must be informed exactly for which goods and services from which companies and in what way their consent applies. On the other hand, the Federal Court of Justice has declared opaque and overly complex consent via GTCs to be inadmissible(judgment of 28 May 2020, case reference: I ZR 7/16 – Cookie Consent II).

Additional regulations on telephone advertising in addition to competition law

Anyone who engages in telephone advertising must also fulfill other legal requirements. Thus, acc. § 102 Abs. 2 TKG, the caller’s telephone number may not be suppressed. The caller must also inform the consumer at the beginning of the call in accordance with Section 312a Para. 1 BGB, the caller must also inform the consumer of their identity, the identity of the person for whom they are calling and the business purpose of the call. As this is a rule of market conduct, breaches of this duty to inform also constitute a breach of the law under Section 3a UWG. This can also be prosecuted as a breach of fair trading law.

Violations of the consent requirement in accordance with. § 7 Abs. 2 No. 2 UWG and the ban on number suppression are also administrative offenses. The former can be punished with a fine of up to € 300,000.00 under Section 20 UWG, the latter with a fine of up to € 10,000.00 under Section 149 TKG.

Telephone advertising in competition law possible in many variants

It can sometimes be difficult to determine whether a call already constitutes telephone advertising under competition law. In the case of calls to survey customer satisfaction, the answer is yes. This is because the aim here is to retain customers and thus promote future business transactions. In the case of opinion polls, in many cases there will at least be attention-grabbing advertising, which is therefore also covered by Section 7 UWG. Headhunting calls to employees also constitute advertising calls within the meaning of competition law and may also constitute an unlawful act towards the employer.

Calls for predominantly other purposes permitted without consent

Anyone who calls a customer in order to fulfill a legal or contractual obligation is not initially acting unfairly. This is also the case if the call could lead to an extension of the contract or the conclusion of further contracts (e.g. information about the defect of a product that makes an additional repair necessary). However, the entrepreneur must limit himself to the information that is necessary for the fulfillment of his obligation. If they subsequently wish to sell a specific service, they must first obtain consent (e.g. “Do you agree to us making you a specific offer directly?”).

Also for telephone advertising: competition law is not restricted by GDPR

Since the GDPR came into force, there has been much discussion about its impact on other areas of law. In some cases, the question has been raised as to whether the permissibility of telephone advertising is no longer governed by the UWG but by the GDPR. Such a blocking effect of the GDPR for competition law was rejected by the Munich Higher Regional Court (judgment of March 21, 2019, ref.: 6 U 3377/18). Claims under competition law therefore stand alongside the provisions of the GDPR, which must of course also be complied with, and can therefore continue to be asserted in full. Also for telephone advertising.