The Higher Regional Court of Hamm has ruled that an unspecified consent clause in e-mail advertising is invalid. The sued company offered goods online and wanted to attract consumers to its customer loyalty program. The consent clause used should allow the company to send out (personalized) newsletters as part of the loyalty card program on the one hand, and general “newsletters” on the other. However, the OLG Hamm objected to this consent clause, since it did not explain the distinction and splitting of the consent with sufficient clarity. Read more about the decision of the OLG Hamm in our article.
General Requirements for Legitimate Promotional Emails
In order to comply with legal requirements, the advertiser must have obtained the recipient’s consent before sending promotional emails.
The starting point for the effectiveness of the consent is the definition of this in Art. 4 No. 11 DSGVO, which has been in force since May 25th, 2018:
“For the purposes of this Regulation, the term “consent” of the data subject means any freely given, specific, informed and unequivocal expression of will in the form of a statement or other clear affirmative action by which the data subject indicates that they agrees to the processing of personal data concerning them.”
If the recipient does not give their express consent, the e-mail is considered unreasonable harassment (spam) and is anti-competitive or inadmissible.
In the case of both personalized and general advertising measures via e-mail, consent must be obtained prior to sending. Otherwise, if there is a risk of repetition, warnings and claims for injunctive relief may follow §§ 8 paragraph 1, 7 paragraph 1, 2 no. 2 UWG.
The only exception is Section 7 (3) UWG. Accordingly, no unreasonable harassment is to be assumed if an entrepreneur has received the customer’s electronic postal address in connection with the sale of goods or services, the entrepreneur uses the address for direct advertising for his own similar goods or services, the customer has not objected to the use and When the address is collected and each time it is used, he is clearly informed that he can object to the use at any time without incurring any costs other than the transmission costs according to the basic tariffs.
In its decision of November 2022, the OLG Hamm (judgment of November 3rd, 2022 – Az: 4 U 201/21) clarified which requirements for a effective consent regarding e-mail advertising are to be provided.
As a retailer, the defendant offered goods in a stationary shop and also online via an advertising shop. Customers could apply to take part in a customer card bonus program.
The consent to the customer card was as follows:
“I agree that the personal data I have provided (…e-mail address…) and my purchase discount data (purchase data and purchase price) for the purpose of the customer card program and for advertising purposes (…by e-mail) by A GmbH & Co. KG stored, processed and used.”
If the customers consented, they received both the general newsletter and personalized advertising e-mails based on their consent.
In February 2016, the plaintiff’s attorney-in-fact, an association for the promotion of commercial interests, purchased clothing from the defendant in brick-and-mortar stores and in this context registered for the customer loyalty program.
After he received a newsletter from the defendant by email in January 2019, he informed the following day via the link provided in the email from the previous day that he no longer wished to receive such emails.
According to the plaintiff, he had already revoked his consent in March 2016 and had not received any further e-mails since then until December 2018.
In September 2020, the defendant sent the plaintiff’s legal representative again at the known e-mail address two promotional emails. The first contained general promotional product information that second a short cover letter with an introductory salutation with the name of the addressee.
When the plaintiff’s attorney-in-fact informed him of the facts, the plaintiff unsuccessfully warned the defendant in November 2020. It was objected that they were illegally sending advertising e-mails, although the sending of further e-mails was objected to or not agreed to.
The association then complained of a violation of § 7 UWG, since advertising e-mails were still sent despite the revocation. In particular, it was criticized that the consent did not indicate that it was based on two different promotions refer and is therefore ineffective.
In its judgment of November 3, 2022 (Az. 4 U 201/21), the OLG Hamm ruled in favor of the plaintiff. The defendant was convicted of the future sending of promotional emails to stopunless the addressee has given his express consent.
In the opinion of the OLG Hamm, the disputed e-mails constituted unreasonable harassment within the meaning of § 7 Para. 2 No. 2 UWG, since the defendant transmitted this to the plaintiff’s legal representative in his capacity as a consumer without the plaintiff’s prior express consent.
In the opinion of the court, the defendant’s declaration of consent was too vague. The circumstances of the individual case and the general principles of interpretation should be taken into account.
The decisive factor for the assessment of sufficient certainty is whether, from the point of view of the declarant, the consent of the advertiser can be assumed for the relevant contact for advertising purposes in the case of a reasonable dedication. A normally informed, reasonably attentive and circumspect average consumer of the respective consumer group must be assumed.
If the advertiser has pre-formulated the statement, as is usually the case, it depends on whether the average consumer can infer consent from the pre-formulation.
In the present case it is not clear that the consent both the sending of personalized advertising and the general newsletter include However, the consent must clearly state which measures of which company are covered by it. That is, what goods or services are being referred to. This must be explained separately and may not be contained in text passages that also contain other references or explanations.
A prerequisite for such an understanding is that the defendant explains the distinction and split between personalized and general advertising in a way that the average customer can understand.
In this case, contrary to the opinion of the defendant, the consent for the average consumer is to be understood in such a way that the e-mail address is used both for participation in the customer card program (e.g. the transmission of vouchers or querying the up-to-dateness of the stored data) and should also be used uniformly for general advertising purposes (all other advertising measures).
It is not sufficiently clear from it that the consent refers on the one hand to the receipt of personalized newsletters as part of the customer card program and on the other hand – separately from this – also to the receipt of the general newsletter. In particular, the statement does not indicate that the sending of the former was approved.
Companies must differentiate between personalized and non-personalized advertising in their declarations of consent. In order to avoid warnings or claims for injunctive relief, it should be ensured that the recipient of the advertising e-mails can distinguish exactly which specific advertising measures he consents to.
The consent must be declared separately for each measure and may not be contained in text passages that also contain other declarations and information.
Would you like to find out more? You can find a detailed summary of all information about sending out newsletters in our article: E-mail marketing in times of the GDPR – how do you act legally? A guide.
A notice: Would you like to appear on the Internet in a legally secure manner without any worries and would you like professional, legal support with legal matters? Take a look at the protection packages of the IT law firm.
Tipp: 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.