The Berlin Court of Appeal has decided that the continued sending of unauthorized advertising emails despite prior warnings increases the amount in dispute. The plaintiff, a lawyer, had filed a lawsuit against a company that continued to send unwanted advertising messages despite warnings. The KG Berlin sets a basic value of EUR 3,000 for the first email and EUR 1,000 for each subsequent email. In a special case, if spam continues to be sent despite a prior warning, the amount in dispute remains at EUR 3,000. Read more about the decision of the KG Berlin here.
What happened?
In the present case, the defendant, a company, sent the plaintiff, a lawyer, unsolicited advertising emails. The plaintiff then warned the defendant not to do this in the future. Despite this warning, the lawyer continued to receive unwanted electronic mail from the company.
During the subsequent trial, the KG Berlin assessed this behavior as increasing the value of the dispute.
What did the Berlin Court of Appeal say?
In its decision of June 20, 2023 (ref.: 5 W 6/23), the KG Berlin decided that the sending of advertising emails despite a prior warning must be taken into account when determining the amount in dispute at the dealer’s expense. In concrete terms, this meant that sending further unsolicited advertising following a warning would increase the amount in dispute.
Basic dispute amount for advertising emails
In principle, the KG Berlin assumes a value in dispute of €3,000 per unsolicited advertising email.
For each additional email, the amount in dispute is set at €1,000. The court sees the €3,000 for the first advertising email as the “base value”. For each additional email for which the same sender is responsible, the value of the item increases by a third, i.e. by €1,000. Unless a close factual and temporal connection between the emails can be determined. In such a case, the increased attack factor of several emails is sufficiently taken into account by setting 10% of the initial value (i.e. €300).
Amount in dispute if advertising emails continue to be sent after a warning has been issued
In its ruling, the court further states that the above-mentioned reduction of the amount in dispute to €1,000 is not possible if the sender has previously been warned and still continues to send spam. In this case, the amount in dispute for the unsolicited email would be a further €3,000.
As justification, the court stated that in such a case the initial situation changes if the person who has been sued for unsolicited advertising emails contacts the claimant with further advertising emails after receiving a warning.
In view of the break caused by the warning and the stubbornness of the advertiser expressed in disregarding it, such an email is fundamentally no less offensive than the first advertising email.
However, if the e-mail advertising following the warning is of secondary importance or if there are other indications that the renewed approach to the injunction creditor is not based on the advertiser’s indifference to the asserted injunction claim, the attack intensity of this advertising can be based on the starting point the assumption of an item value of one third of the initial value must be sufficiently taken into account.
Previous decision of the KG Berlin on the value in dispute of advertising emails
In an earlier decision dated January 17, 2022 (ref.: 5 W 152/219), the KG Berlin had already addressed the question of the amount in dispute of such emails as part of a complaint procedure regarding a lawsuit to stop the unsolicited sending of advertising emails. Emails dealt with.
Back then, the KG Berlin set the basic value in dispute of an advertising email at €3,000 if the email recipient’s privacy and general personal rights were violated by the email.
The court stated that a value in dispute of €3,000 also adequately reflects the interest of the recipient of an e-mail letter in not sending further e-mail advertising, which would thereby have an adverse effect on his or her business or professional practice and assert a claim for injunctive relief due to an interference with his right to the established and operated business.
If advertising emails are sent several times, the amount in dispute should generally be increased by 1/3 for each additional letter due to the higher attack factor associated with repeated harassment. However, if several emails were closely related in terms of subject matter and time, an increase of a total of 10% would be sufficient to meet the increased attack factor of renewed harassment through another email with advertising content.
TIP: We have further information on the subject of email marketing in times of GDPR compiled in this guide!
Conclusion
According to court rulings by the KG Berlin, the basic amount in dispute for an unsolicited advertising email is €3,000. If a warning has already been issued, the amount in dispute for each additional unsolicited advertising email sent is usually €1,000. If you receive a warning, immediately stop sending further advertising messages to the person issuing the warning, because with each additional email, the amount in dispute in the subsequent legal proceedings increases and thus also the court costs that have to be paid by the person receiving the warning.
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