Section 7 of the German Act Against Unfair Competition (AAUC) labels advertisements sent by electronic mail without the recipient’s express prior consent as “unconscionable pestering”. Competitors can claim elimination, cessation, desistance and compensation for damages. Moreover, if the recipient of an unsolicited email advertisement is a business, they can claim “infringement of rights with regard to protected business interests” on the grounds that these unsolicited emails cause additional expenditure to the business (Decision of 20/05/2009 – I ZR 218/07 – Email advertisement II).
Because of these restrictions, many German websites offer browsers an option to “recommend” a business to a friend so that the website owner can send an advertising email to this person.
The Federal Court of Justice has recently handed down a decision (Judgment of 12/09/13 – I ZR 208/12 – recommendation-Email) that:
- restricts these practices; and
- points out that if a company sends advertising emails in these circumstances, it will have breached s7 of AAUC, respectively will have infringed “rights with regard to protected business interests” despite the contact details having been provided by a third party.
A lawyer brought an action for cessation and desistance following emails received by an outdoor advertising company. The defendant company’s “recommendation” function on its website worked as follows: If a third party entered his own and another’s email addresses, an automatically-generated email was sent from the defendant, who appeared as sender, to the other address.
The Federal Court of Justice decided that the defendant was liable for “infringement of rights with regard to protected business interests” despite the fact that that the sending was initiated by a third person.
The court held that the sending of the advertising email originated from the website’s “recommendation function”. It emphasised that this function’s sole purpose was to send advertising emails in which the defendant appeared as sender. Interestingly, the court pointed out that it was not necessary for the defendant to expressly accept the risk of abusive third-party use. On the contrary, it found that the defendant had obviously created the function to send emails to recipients who had not given express prior consent.
Using “recommendation functions” on websites is, according to German law, a risky advertising strategy, at least in cases where the website’s owner appears as sender in advertising emails generated by third party recommendations.