Companies often use links in their email signatures to refer to their own social media channels on Facebook, Instagram & Co. Critics consider this mentioning of social media links to be inadmissible electronic advertising. In a case decided by the AG Augsburg, links to social media channels were included in an automated e-mail notification of absence. In today’s article you can read how the court legally qualified these social media links.
What happened?
The defendant is a leading provider of digital legal information systems in Germany. The plaintiff contacted the defendant via the general contact portal and expressed his interest in the defendant’s products.
A multi-stage correspondence took place between the plaintiff and a sales representative of the defendant, including telephone calls and e-mails.
The plaintiff replied to a message from the defendant with an e-mail and in turn commented on the relevant product range of the defendant.
After sending this message, the plaintiff received the following automated notification of absence from the digital legal information system:
The plaintiff regarded the linked social media channels of Facebook, Twitter and YouTube in the absence notice as inadmissible electronic advertising, which constituted an encroachment on general personal rights, and then warned the defendant.
The defendant, on the other hand, took the view that the plaintiff had already consented to the disputed communication by replying to the e-mails in advance.
In addition, the e-mails were sent in a professional context, which means that an interference with the general right of personality is to be regarded as remote.
The dispute continued before the AG Augsburg (final judgment of June 9th, 2023, Az. 12 C 11/23, not yet final) and ended with a dismissal of the lawsuit.
How did the court judge the social media links?
Already already no advertising
The AG Augsburg did not see any advertising in the reference to the internet and social media presence.
In common parlance, the term “advertising” includes any action taken by a business to promote the sale of its products or services.
This includes not only direct product advertising, but also indirect methods such as image advertising or sponsoring.
The court then stated that under the above principles, simply referring to a company’s social media channels after an employee’s contact details, without mentioning a product or other promotional information, cannot be considered advertising.
Because this reference is not intended to promote the sale of products or services. Instead, it is for informational purposes only, similar to providing additional contact information in the employee’s signature. The AG Augsburg did not see any indirect sales promotion in the form of image advertising in the mentioning of the social media links.
The weighing of interests falls in favor of the defendant
The court also stated that even in the event of an alleged interference with the general right of personality or the right to the established commercial enterprise, there was no illegal activity.
In order to determine whether the act was unlawful, it is necessary to weigh up the interests of the plaintiff in the protection of his personality and respect for his privacy, which are worthy of recognition, and the interests of the defendant, which are worthy of protection, in being allowed to communicate with customers for the purpose of product advice. This balancing of interests went in favor of the defendants.
The court argued that
the notification of absence was made as part of a product consultation that was already in progress, to which the plaintiff himself had contacted several times and the absence notification had an essential informational character (specifically the purpose of preventing the plaintiff from receiving an answer to his product inquiry due to the absence of the employee).
The court then stated:
“Assuming that the reference to the defendant’s website would constitute advertising, it would have to be taken into account in this context that the unwanted advertising by naming the e-mail addresses only had a comparatively minor impact on the plaintiff’s interests, especially since he could simply ignore them. A thoughtful preoccupation with advertising email is not necessary. Because the defendant’s reference was obviously only to the same websites, the plaintiff does not need to separate it from other information. Rather, the plaintiff can refrain from using the defendant’s other websites without any expenditure of time It is not necessary to sort out an advertising part of the e-mail for this purpose. The plaintiff’s interests worthy of protection therefore do not prevail in the present case.”
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Summary of the decision
The simple reference to social media links in the signature of an email of absence (without mentioning a product or other advertising information) does not constitute advertising in the opinion of the AG Augsburg. Because these links are not directly aimed at promote the sale of the products or services. Rather, in the opinion of the court, these should be used for information purposes, similar to the specification of further contact details in the signature of the employee.
The decision is not yet final, the plaintiff has already announced that he will appeal.
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