In a judgment dated 15 December 2015, case no VI ZR 134/15, (“Judgment”) the German Federal Supreme Court (“FSC”; Bundesgerichtshof – BGH) confirmed that an electronic mailbox held by a consumer shall be covered by the so-called private sphere of a natural person as part of its general right of privacy. Consequently, the FSC concluded that automatic reply emails by a company to a consumer, which contain not only a confirmation of receipt of an earlier email sent by the consumer but also additional adverts, shall qualify as violation of the natural person’s general right of privacy, provided that the relevant consumer has expressly refused to receive advertisings.

Facts of the Judgment

The plaintiff, a consumer, sent a notice termination to the defendant, an insurance company. The defendant sent an automatic reply to plaintiff, confirming receipt of plaintiff’s email and announcing a detailed response to follow by separate email. In the signature of defendant’s email, advertising statements in relation to certain weather services were displayed. The plaintiff responded to defendant’s email, demanding that defendant stop sending such advertising statements. Notwithstanding, defendant’s email system again sent an automated response, containing the same adverts. Finally, respondent filed an injunction in order to prohibit defendant to send the aforementioned (or similar) electronic adverts without plaintiff’s express consent.

Scope of the Judgment

The FSC held in favor of plaintiff and confirmed the injunction granted by the court of first instance.

The FSC held that the plaintiff shall have a right to file an injunction, which results from violation of plaintiff’s general right to privacy and is based on sections 823(1) and 1004(1) s. 2 German Civil Code (Bürgerliches Gesetzbuch – BGB). In particular, the FSC made reference to earlier judgments which had established the prohibition to deliver postal advertisings that disregard the relevant recipient’s express rejection. The FSC expressly transferred those principles to electronic advertisings. Further, the FSC referred to Article 13(1) of the Directive on Privacy and Electronic Communications 2002/58/EC (“Directive”), according to which the use of electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent. The FSC emphasized that also the recitals 1, 12 and 40 of the Directive support the finding that Article 13 shall aim on protection of the general right of privacy. The FSC explained that there was no need to decide whether each violation of Article 13 of the Directive shall automatically qualify as violation of the general right of privacy, since at least defendant’s last automated email entirely disregarded plaintiff’s express wish not to receive any further email advertisings. In the FSC’s view, ignoring a consumer’s express wish not to receive electronic adverts shall always qualify as violation of the relevant data subject’s general right to privacy. Against this backdrop, the fact that defendant’s automated email replies also contain a confirmation of receipt of the consumer’s email shall be irrelevant.

Further, the FSC held that violation of plaintiff’s general right of privacy shall be regarded as illegal (rechtswidrig). In the FSC’s view, plaintiff’s interests (i.e. protection of his / her privacy) shall outweigh defendant’s interest to approach its customers for the purposes of commercial advertising. The decisive factor when balancing the adverse interests against each other was the fact that plaintiff had expressly refused to receive further electronic adverts; also, the FSC emphasized that there was no practical way for the plaintiff to prevent receipt of such communications. Accordingly, the interests of a consumer in protection of his / her privacy (private sphere) shall prevail.

Impact

The Judgment has not only an impact on automated reply emails (so called auto-responders), but also on other commercial emails. Any communication from a company to a consumer, which contains lawful contents, might be invalidated by implementing advertising content, provided that the consumer has refused such to receive such adverts. On the other hand, it appears that the ruling from the FSC’s Judgment shall not be transferred to email communications between two companies. Finally, it appears to be still an open question whether the FSC’s ruling can be transferred to advertisings which are attached to postal business communications.