Germany’s Unfair Competition Act forbids advertising that unlawfully disturbs or harasses the consumer. As a rule, advertising constitutes unlawful harassment if, inter alia, it is sent by email without the express consent of the recipient.
This law prevents advertising emails from being sent in Germany to German consumers if the recipients have not clearly and unambiguously consented to receiving the email beforehand.
In principle, it also forbids advertising sent to German consumers by companies with a business seat outside Germany. However, in practice many problems exist for potential plaintiffs to get hold of those foreign companies—either because those companies have not been named in the advertising or they cannot be reached with reasonable efforts.
The law also forbids ‘cold calls’, ie, telephone calls for marketing or advertising purposes without the express consent of the person or company who is contacted. In practice, foreign companies with call centres outside Germany may be difficult to reach. Also, in many other cases cold calls from or on behalf of German companies are not pursued because private persons are not themselves in a position to sue. Potential plaintiffs include competitors (who are often not informed) or certain institutions whose express purpose is to pursue unfair competition matters on behalf of others and then bring these issues before a court.
In a case decided this year by Germany’s highest court in civil matters, the Federal Court of Justice (Supreme Court), the plaintiff was the Verbraucherzentrale Bundesverband, a German federal institution dedicated to protect and enforce the rights of consumers in Germany. This institution is admitted to pursue unfair competition claims in Germany. The defendant was Facebook Europe, with a business seat in Ireland. The plaintiff claimed that Facebook uses a function on its website with which contacts of Facebook users who are not yet registered are invited to become registered with Facebook (‘Find friends’, or ‘Freunde finden’ in German).
Upon registration, every Facebook user is asked to import his or her contacts (with email addresses), which then enables Facebook to use that data to send—via email—invitations to people who have not yet registered as Facebook users. Facebook, as a part of the registration process, only asks the user “Are your friends already registered with Facebook?”
The plaintiff argued first that Facebook users were unlawfully misled upon registration because it was not clear what Facebook may do with the imported data. Second, it argued that the people receiving the “invitation” were unlawfully harassed or disturbed by receiving the email without their prior consent.
Supreme Court has its say
The Berlin District Court and the Court of Appeal had both affirmed the claims raised by the plaintiff. These decisions were affirmed by the Supreme Court in its decision, issued in January 2016. The court held that the ‘Find friends’ function both misled users upon registration and unlawfully harassed those receiving the invitations.
The users who were about to register were not clearly made aware of the fact that all contacts not yet registered with Facebook may be contacted via email and invited to become registered with Facebook, even if they did not consent before this email.
"The plaintiff argued that Facebook users were unlawfully misled upon registration because it was not clear what Facebook may do with the imported data."
Furthermore, the court held that the people receiving those invitation emails obviously thought that these were Facebook advertisements, not private emails by the users who asked whether the recipient would like to become registered.
As a consequence of that ruling, Facebook must change its website—at least as far as Germany is concerned—and may not ask users to import email address data without expressly clarifying what purpose this data may serve.
In addition, Facebook is enjoined from using a function which sends invitation emails to contacts who have not expressly consented to receiving such emails before receipt.
Jens Künzel is a partner at Krieger Mes & Graf v. der Groeben in Düsseldorf, Germany. He can be contacted at: email@example.com
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