On 10 July 2018, the German Federal Supreme Court delivered a further decision on spamming, which impacts any state-of-the-art customer engagement by collecting customer satisfaction surveys post-purchase by email.
In the Court’s opinion, doing this without express consent of the customer is blatant spam.
Claimant and defendant concluded a sales contract. The claimant received an invoice via email with the following content:
“Dear Sir or Madam,
Enclosed you find your invoice in PDF format. Thank you very much for buying the article from us. We are a young company which is why we rely on goods reviews. That’s why we kindly ask you to give us a five-star review if you are satisfied with our services. In case there is anything wrong with the delivered article or our service, we kindly ask you to contact us. We can then address the problem.
How to write a review: simply log in and write a review by following this link”
Whilst the first two courts deciding on the case considered this email to be transactional communication and therefore not illegitimate spamming, the Supreme Court reversed this opinion.
Firstly, the Court (in accordance with the view expressed by the lower courts) stated that customer satisfaction surveys – since they serve at the very least to bind customers and promote future business – are to be regarded as advertising.
In the concrete case, the overall classification of the email by the Court as commercial communication was the consequence of the connection of the invoice with the customer satisfaction survey. The Supreme Court made it clear that sending an invoice alone does not constitute advertising, but – as the claimant’s email was being used by the defendant in two aspects, i.e. for the sending of the invoice and for advertising purposes – the email’s advertising character could not be taken away by connecting the email with transactional communication (invoice).
The Court held that the sending of this email constitutes an infringement of the claimant’s personality rights.
The Court then pointed out that advertising for similar products or services without the express consent of the addressee may be permitted. However, this exception requires a clear and unequivocal notice upon collection of the customer’s e-mail address that the customer may object to the use of his address at any time without incurring any costs other than the transmission costs.
As such a notice by the defendant was missing, the Court held that – with the customer satisfaction survey generally being regarded as spam – this exception was in this present case no reason to eventually justify the infringement of the recipient’s rights.