Customer satisfaction queries are a popular tool for businesses to consolidate customer loyalty and inspire future sales. According to the latest court decision it has been confirmed that outside of narrow exceptions obtaining prior explicit consent is indispensable to avoid liability (KG Berlin, decison dated 07.02.2017 - ref.: 5 W 15/17).

There are two important takeaways from the decision. First, the court found that customer satisfaction queries sent via email to customers after they made a purchase in their online-shops constitute advertising. The court stated that the queries, occurring after the conclusion of a contract, may give the customer the impression that the surveyor is striving for him/her even after the conclusion of the deal and in addition, they serve as a reminder drawing the customer's attention to the business.

Second, customer advertising by electronic means is only legal if the customer has given prior explicit consent or the prerequisites of the German Act Against Unfair Commercial Practices are met. Pursuant to that any advertising using electronic mail without the prior express consent of the addressee constitutes unreasonable harassment. Due to the unreasonable annoying nature of such advertising, sending an advertising e-mail without prior express consent is generally unlawful. It is possible to include an opt-out proceeding after a customer has obtained a product or services from a merchant. But there are certain information requirements, which have not been met in the present case.

The court's decision consolidates current jurisprudence. According to the judges, businesses do not have a legitimate interest in proceeding without consent, the law does not impose too high a burden and businesses can easily carry out queries as long as they comply with the legal requirements. If they do not, their hopes for leniency by the courts are slim to none.