March 2018 - Email Best Practices

The Consent Given on Occasion of the Sending of Email Advertising Expires in the Course of Time

Media law expert Florian Daniel from DWF Germany looks at how the context of consent for advertising emails can lose relevancy and validity over time.

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Business in the area of email marketing is growing and is becoming increasingly popular, even though it is difficult in practice for the sender and/or the advertised company (as far as this is different) to provide evidence of the necessary addressee’s consent. Proof of the addressee’s consent is usually provided by presentation of a database extract. But the submission of a database extract only recording the addressee’s consent to the sending of advertising emails at a certain point in time using a certain IP address, is not suitable for proof of consent in court. In addition, the advertiser must also provide evidence of exactly what the addressee has consented to, and that the current transmission of the advertisement is covered by this consent. As a result, the transparency requirement under the terms and conditions of business law is a barely insurmountable hurdle in the design of such declarations of consent.

However, even if the sender/advertised company can prove that the recipient validly consented to the sending of advertising emails, with the consent validly granted in the past, it is in practice often overlooked that the consent may also expire as a result of the passage of time.

In 2010, the regional court of Munich (Landgericht München) stated that a given consent expires after a longer period of time and thus loses its validity (file reference: 17 HK O 138/10). In this case, the plaintiff received an advertising email about 1.5 years after (allegedly) consent was granted.

It is often concluded from this decision that consent can only lapse if no advertisement has been sent to the addressee at all for a certain period of time. But this is actually not the case.

In a decision in 2016, the regional court of Berlin (Landgericht Berlin) stated that consent may also expire if advertising emails are sent at regular intervals (file reference: 15 O 515/15). In particular, the case dealt with consent allegedly granted more than three years before in connection with participation in an online competition. The court stated that consent with regard to respective advertising measures is required, and not only in this context. This occasional consent to the sending of email advertising can be lost by mere passage of time because the consent loses its recency. The regional court of Berlin stated that, in today’s fast-moving times, the advertiser can no longer assume that the consenting party’s interest has not changed since the submission of consent. This applies, in particular, if consent has been given on the occasion of participation in an online competition. According to the regional court of Berlin, consumers often believe that advertising consent is necessary for effective participation in an online competition, or at least improves the chances of winning. Therefore, the advertiser should not ignore the fact that most consents represent an interest in receiving advertising email only until the moment when the closing date for entries and for the drawing of prizes is reached.

The regional court of Berlin also rejected the defendant's argument that the addressee had “clicked” on received advertising and thereby reaffirmed his/her given consent. In the opinion of the court, such clicking shows only that the addressee may consider such advertisements to be interesting, but not that he or she agreed to receive these or any other advertising emails. Rather, the advertiser should have asked for confirmation that the consent originally given in connection with the online competition still exists. This legal opinion is also shared by another chamber of the regional court of Berlin. With regard to a comparable case, it reaffirmed in 2016 that the consent granted once in connection with participation in a competition expires over time. The legal interpretation of the courts of Berlin is shared by legal experts in the standard commentary on unfair competition law by Köhler/Bornkamm (cf. Köhler/Bornkamm, UWG, 34th edition, § 7 marginal 186).

Accordingly, the jurisprudence must be interpreted in such a way that an advertising consent which is granted in the context of a competition is given by the consenting party in a “temporally dissolving” manner from the beginning (regional court of Berlin in MMR 2004, 688; in WRP 2012, 610; judgement of 06.04.2016, file number: 15 O 515/15; judgement of 28.11.2016, file number: 52 O 153/16; district court of Bonn, judgement of 10.05.2016, file number: 104 C 227/15).

If an advertising email is illegally sent, the addressee may seek injunctive relief against the sender and the advertised company, as well as against the managing director. Thus, it is recommended that the circumstances under which consent and the respective email address has been obtained are checked. If email addresses have been obtained, for example, through participation in an online competition, it should be checked whether the consent given for the purpose of participating in the competition to send email advertising could have expired over time.

Therefore, the advertiser should not ignore the fact that most consents represent an interest in receiving advertising email only until the moment when the closing date for entries and for the drawing of prizes is reached.

Even though the judiciary has to date not set a fixed time limit, the advertising company must question whether it can be assumed that the consent once given is still valid from the addressee’s point of view. In case of doubt, the advertiser should approach the addressee in order to have the consent confirmed or to obtain the consent again. Otherwise, it is not only the advertiser’s image which is at stake. The sending of one single advertising email may entail the violation of rights of many people and may trigger corresponding claims for omission, information, and damages.

Florian Daniel specializes in intellectual property rights, media law, copyright law and unfair competition law. He also provides advice in Internet law and e-commerce law, with an emphasis on personal and press rights. He assists companies in all legal matters of advertising, market positioning and market development and gives strategic advice.

Please note:
 The opinions expressed in Industry Insights published by dotmagazine are the author’s own and do not reflect the view of the publisher, eco – Association of the Internet Industry.