Commentary on the warning “Der Freie Berater e.V.

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The warning of a magazine “Der Freie Berater e.V.” against an intermediary GmbH has caused a stir.

 

The magazine is demanding an injunction against harassment with SPAM, specifically concerning a press release that “BF.services GmbH” had distributed.

Unprofessional impression of the sender:

The warning and the request to cease and desist appear correct at first glance. The sender had apparently not kept to usual customs in the email traffic and the valid legal situation. If you want to acquire professional know-how in this sector, you can find offers on the Internet, for example at the FH Furtwangen: In general, it can be recommended for direct marketing to use the bcc: function for distributors.

This is also part of the so-called netiquette:
Too high a remuneration?

The stated value in dispute of 10,000 Euro may be appropriate – or not, because after all there are comparable proceedings with a value in dispute of 2,000 Euro.
In a similar case (BGH judgement of 30.11.2004, file no. VI ZR 65/04 – to the judgement: click here), the Federal Court of Justice had set a value in dispute of 3,000 euros. So see it also LG Hamburg – order of 27.4.2005 – Az: 312 T 2/05, AG Hamburg – judgement of 03.09.2002 – Az: 36A C 1350/02.

Justified warning in case of press release?

The Federal Supreme Court has already clarified in a decision of 11.03.2004 (Az. I ZR 81/01 – to the judgement: Click here):

The sending of an unsolicited e-mail for advertising purposes is generally contrary to public morality in competition. Following this line, the legislator has even tightened the requirements for e-mail advertising in the new UWG (Unfair Competition Act, in force since 8 July 2004). According to § 7 para. 2 No. 3 UWG, e-mail advertising without prior consent is anti-competitive.

According to the current legal situation, implied consent is no longer sufficient to justify the sending of advertising e-mails. A prerequisite for a warning by the association “Der Freie Berater e. V.” would be its own right of action. That is entitled however ” after old like new legal situation” only competitors or complaint-entitled federations. In the present case, however, the association making the claim is neither a competitor in the market for the sale of financial products nor is it authorised to bring an action against the association, so that the warning cannot be based on Sections 3 and 7 UWG.

However, the requirements for a warning notice are also not met for reasons of general personal rights and tort law. It is true that even those affected by e-mail advertising can defend themselves against such an encroachment on their business operations without being entitled to take legal action under the UWG. However, such advertising may be permissible by way of exception if, in the case of advertising to traders, an objective interest on the part of the recipient can be assumed on the basis of specific factual circumstances.

For a court, this constellation also offers two starting points for dismissing the claimant:
– It is common practice in dealing with the press to send so-called press releases by e-mail. This is considered by the public to be customary in the sector or socially acceptable.
– Also due to the implied consent to be assumed vis-à-vis the press, it is reasonable to apply for a cease-and-desist letter prior to a request for a cease-and-desist letter and in the case of a one-off infringement, without the need to engage a lawyer.

Legal SPAM?

The Düsseldorf Regional Court has also ruled that sending an unsolicited advertising e-mail (spam) is not necessarily illegal (Ref.: 13 O 39/03). What is required is an “impairment that goes beyond mere harassment and socially customary obstruction”, decided the 13th chamber of the court. However, the significance of this decision is limited because it was issued before 8 July 2004, i.e. under the old UWG.

The district court Munich (Az.: 213 C 29365/03) went still further: A lawyer demanded because of an advertising email to its office, liable to pay the costs an omission. The court denied reimbursement of costs. It is true that the unauthorised sending of advertising e-mails may constitute a tortious act and thus also give rise to damage; however, an interference with the plaintiff’s professional business presupposes a direct impairment of a certain intensity. This would not be the case if the advertising e-mail was sent only once. This email may be perceived as annoying, but it does not go beyond what is socially customary.

As the saying goes “He who has the damage need not provide extra for the ridicule .”?
Literature tip for direct marketing: Legal practice in direct marketing / Dr. Peter Schotthöfer (Ed.), Christian Schmoll and Axel v. Walter, Gabler Verlag 2005.

 

by Axel von Walter and Johannes Fiala (Munich) – Law Firm Fiala, Freiesleben & Weber (www.fiala.de)

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Dr. Johannes Fiala Dr. Johannes Fiala

Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
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