In addition to e-mail advertising, letter advertising is still very popular with companies because, unlike electronic communication, it regularly ensures that the advertising content is actually dealt with. However, care should be taken when sending mail: if it is obvious that the interjection of advertising is undesirable, it is inadmissible as an unreasonable nuisance. However, how it is to be assessed if the advertising material is not thrown in, but attached to the mailbox system, was recently decided by the AG Munich.
I. The facts
The plaintiff found two advertising flyers from a moving company stuck in a column of his mailbox system. All of the mailboxes in the system were provided with a “Please do not post any advertising” notice, a so-called “blocking notice”.
After an unsuccessful warning, the Munich resident then filed a lawsuit, citing trespassing, i.e. illegal interference with possession of the mailbox. He believed the movers had had the flyers distributed in a ruthless manner. None of the hood residents wanted to receive advertising, and certainly not such wildly discarded and attached advertising. This significantly increases the annoyance factor.
The defendant company asserted that it did not initiate this disruptive type of distribution and was not responsible for it. She had instructed the distributors she had commissioned to put the advertisements only in mailboxes that did not have a no-advertising notice. She also argued that the letterbox system in the apartment building was accessible to everyone, which means that an unknown third party could have jammed the advertising flyer there.
II. The decision
The AG Munich upheld the lawsuit in its entirety with a judgment dated March 18, 2023 (Az: 142 C 12408/21).
The plaintiff is entitled to an injunctive relief pursuant to §§ 823 para. 1, 863 BGB in connection with § 1004 BGB analogous to. The defendant unlawfully disturbed the plaintiff in his possession or co-possession, there is a risk of repetition and the defendant is a disturber.
A violation of possession is usually affirmed if advertising flyers are thrown in, although it is clear that the throwing in of advertising is not desired. It is the right of the apartment and letterbox owner from § 862 BGB to defend themselves against an impairment of their spatial-objective sphere by the imposition of unwanted advertising material.
In the case of mail advertising, the consumer’s consent is not required in principle, neither under competition law nor under data protection law.
However, an infringement of the law is given if the entrepreneur ignores a recognizable conflicting will of the consumer. By putting a blocking notice on the mailbox, the consumer expresses that he does not want to receive any print advertising.
In this case, the advertisement was not put in the plaintiff’s mailbox, but the plaintiff was disturbed in his co-ownership of the mailbox system and the entrance area of the house.
Since the defendant had flyers of the type in question distributed in Munich during the period in question, she is this indirect disruptor. The court rejected the objection of the defendant moving company that the flyers were not distributed by their carriers in the specific case. According to the principles of prima facie evidence, it can be assumed that flyers from a company were also thrown in by advertising distributors who work for the company as part of the advertising campaign. This is a typical sequence of events. The sweeping assertion that third parties could have distributed the flyers does not stand in the way of the acceptance of the prima facie evidence. The defendant was unable to prove any facts that opened up the serious possibility of a different (atypical) course of action.
Finally, the defendant’s objection that it had instructed the distributors it had commissioned to only distribute advertising in a permitted manner did not change anything.
The defendant is responsible for pointing out the need for appropriate organization and control of the advertising campaign to the carriers it has commissioned. It is also their responsibility to ensure that suitable protective measures are in place, to investigate complaints and, if necessary, to give the matter more emphasis by threatening economic and legal sanctions, for example by agreeing on contractual penalties. However, the defendant has not submitted anything regarding the initiation of such measures.
III. Conclusion
In principle, no competition or data protection consent from the consumer is required for mail advertising.
However, it leads to a violation of the law if the advertiser ignores the recognizable conflicting will of the consumer.
This is the case if advertising is thrown in despite a corresponding blocking notice. Such behavior constitutes a violation of possession, which can justify a claim for injunctive relief. The same also applies to advertising flyers that are not thrown in, but placed loosely on, on or near the mailbox. If a company commissions the distribution of advertising material, it is its responsibility to ensure that the distributors commissioned by it are properly distributed.
We show which competition and data protection law requirements and special features have to be observed in letter advertising in this guide.
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Susanna Milrath
Scientific Associate