According to § 7 Abs. 2 Nr. 3 UWG, advertising by e-mail and fax represents an unreasonable nuisance if the recipient concerned has not previously obtained their express consent. This applies regardless of whether the addressee is a private person or a company. The decision of the Cologne Higher Regional Court of April 12th, 2021 (Ref .: 15 W 18/21) confirms this principle and shows that a one-time inadmissible sending of advertising by e-mail or fax even justifies the urgency for an injunction against the sender. Read more about the decision in our post.
I. The facts
The respondent sent the applicant e-mail advertising. The applicant’s consent was not obtained beforehand.
The applicant then warned the respondent. The respondent did not respond to this warning.
Around three weeks later, on March 4th, 2021, the applicant received another unsolicited commercial from the respondent, this time by fax. The applicant then applied to the Cologne Regional Court for an injunction to be issued against the respondent.
The application made was rejected in the first instance. In the opinion of the LG Cologne, although they had a right to dispose of them, there was no reason to dispose.
What is the reason for injunction in interim legal protection?
A reason for a disposition exists if the issuance of an injunction is necessary to avert a risk to the interests of the creditors. Circumstances must exist which, according to the objective judgment of a reasonable person, lead to fear that the realization of the individual claim is endangered by an imminent change in the existing situation (urgency).
–
The applicant lodged an immediate appeal with the Cologne Higher Regional Court against the decision of the Cologne Regional Court.
II. Background knowledge: The admissibility of advertising by means of electronic mail under competition law
According to this, any advertising using a fax machine or electronic mail without the recipient’s prior express consent is an unreasonable nuisance.
The law sees an exception in Section 7 (3) UWG exclusively for the so-called Recruitment of existing customers in front.
Within existing customer relationships (= existing customers) it is possible for online retailers to advertise the sale of their own similar products by email without having obtained the customer’s consent.
However, the exception provision of Section 7 (3) UWG requires that
- an entrepreneur in Related to the sale of a good or service has received the customer’s electronic postal address,
- the entrepreneur the address for direct mail for own similar goods or services used,
- the customer of use not contradicted has and
- the customer when collecting the address and each time it is used clearly indicatedthat he can object to the use at any time without incurring any costs other than the transmission costs according to the basic tariffs.
You can find more information on the subject of “Recruiting existing customers by e-mail” in our article “E-mail marketing in times of the GDPR – how do you act in a legally secure manner? A guide”.
III. The decision of the OLG Cologne
The OLG Cologne changed the decision of the LG Cologne of 16.03.2021 (Az .: 28 O 84/21) with a decision of April 12th, 2021 (Ref .: 15 W 18/21).
The OLG Cologne ordered by way of an interim injunction that the respondent is prohibited from sending e-mail advertising in business dealings without prior consent.
The conditions for the issuance of an injunction are available, as both a right to dispose and a Reason for disposal are given.
The claimant is not entitled to the claim for injunctive relief §§ 823 Abs. 1, 1004 Abs. 1 S. 2 analogous to BGB. The promotional email sent on 02/21/2021 represents a unlawful interference in the established and exercised business operations of the applicant The applicant had credibly submitted that the respondent had not given her consent to the sending of advertising emails. The respondent did not oppose the warning from the applicant.
The OLG Cologne affirmed in its decision also the presence of one Reason for disposal according to §§ 935, 940 ZPO. The issuance of the injunction is for the effective legal protection of the applicant, even if the applicant is not a competitor within the meaning of § 2 Paragraph 1 No. 3 UWG of the respondent and he is not entitled to an injunction under §§ 3, 7 Paragraph 2 No. 3 UWG. Therefore, the applicant could not rely on the presumption of urgency in Section 12 (1) UWG.
In the Consideration the mutual interests of the applicant and the respondent, the OLG has included the violated rights of the applicant in the established and exercised business enterprise.
The applicant’s action by way of interim legal protection is not disproportionate. Admittedly, the impact on the applicant from receiving a single advertising email and another advertising fax has so far been relatively minor.
However, there was a risk of future harassment and was not eliminated by the respondent by submitting a declaration of cease and desist.
The deletion of the advertising e-mail and the disposal of the advertising fax do not represent a major effort for the applicant due to the technical possibilities. The daily inspection of mail and fax receipts, however, justify a further impairment of the right to the established and exercised business operation of the Applicant.
The applicant would thus be obliged to urge his staff to delete unwanted advertising emails. He has to bear the risk of errors in the disposal and ultimately he is left with the expense of material resources.
A legitimate interest of the respondent, which speaks against the issuance of the interim injunction, is not given. The respondent did not respond to the applicant’s warning, but rather sent him another advertisement by fax without consent.
IV. Fazit
The decision of the Cologne Higher Regional Court of April 12th, 2021 (Ref .: 15 W 18/21) shows that advertising online retailers do not only have to reckon with out-of-court warnings when unsolicited advertising emails are sent.
In the opinion of the Cologne Higher Regional Court, even a one-time inadmissible advertisement sent by e-mail or fax justifies the urgency for an interim injunction to issue a judicial prohibition against the sender.
Note: Would you like to appear on the Internet in a legally secure manner without worries and would like professional legal support with legal matters? Take a look at that Protection packages from the IT law firm.
tip: Do you have any questions about the contribution? Feel free to discuss this with us in the
Entrepreneur group of the IT law firm on Facebook.
– .
