Guest article by Dr. Felix Buchmann
To the "Autoreply" verdict from the BGH on December 15th 2015 - I ZR 134/15
I. Development of the jurisdiction on email marketing
It is not just since the rapid growth of the internet that jurisdiction has dealt with the question of how third parties may be addressed. With the increased amount of advertising due to technical innovations, the jurisdiction for unsolicited contact with consumers has steadily developed. Initially it was questionable whether letter advertising violated the recipient's general right of personality, and subsequently if the owner of a mailbox could defend himself against the insertion of advertisement by providing a respective notice, which the Federal Court of Justice affirmed. In fact the insertion of handouts into a mailbox is not to be complained of, because flyers are recognizable at first sight and can be easily removed. If the owner of the mailbox explicitly states that he does not wish to receive advertising material, then this is different. The will to self-determine is to be valued more strongly than the interest of the entrepreneur in placing advertisements. In addition to the claim from §§ 1004, 903, 862 BGB, this is also entitled to the claim from § 1004 BGB, in particular if the person concerned is not seeking to defend his rights of property and possession, but rather to confront suggestive advertising which he wants to avoid. This ruling was finally extended to advertising via fax.
Not yet decided by the supreme court was the question of how to handle automated reply emails that are only sent when a consumer contacts an entrepreneur and when this email contains further information other than the confirmation of receipt. The special feature is that these emails are basically wanted by the recipient.
II. The decision of the BGH on autoresponders
The BGH had to judge the following case: A consumer cancelled an insurance policy by email on November 10th 2013 with the request for confirmation. The insurance company then sent an automated confirmation of receipt by email with the subject "Automatic reply to your email (...)". Alongside the confirmation of receipt, the email also contained brief information about a "free service", specifically an app for severe weather forecast. The following day, the consumer reprimanded the advertising enclosed in the email. After that, he again received the same confirmation of receipt email, also in response to his further status request one week later.
The BGH affirmed an injunctive relief from §§ 1004 para. 1 p. 2; 823 para. 1 BGB due to the automated emails from " 10., 11. and 19. of November". In agreement with the past jurisdiction, the BGH clarified that even brief references to a free service are considered advertising. "Advertising" also includes indirect sales promotion and the reference to any other (free) services.
However, the acknowledgement of receipt itself does not qualify as advertising, which does not mean that this (permitted) vehicle can be used for (non-permitted) advertising.
In the establishment of contact itself, which as such is no defamation, an impairment of the general right of personality right can only be considered as a matter of principle if it takes place against the explicitly declared will of the person concerned. Following the recipient's clear declaration of opposition to the receipt of advertising, the (reply) email automatically sent by the company constitutes an encroachment on the general right of personality due to the advertising contained therein. It could be questioned whether article 13, paragraph 1 of the Data Protection Directive requires an interpretation in conformity with the Directive in the sense that the sending of an email always constitutes an encroachment on the general right of personality. In any case, with the third email, the company had acted against the explicitly declared will of the consumer.
The encroachment on fundamental rights was also unlawful, as within deliberation the interests of the consumer outweigh the conflicting interests. Although the advertising affects the interests of the consumer only to a small extent because he can easily recognize it as such, he must nevertheless separate it mentally from that part of the message relevant to him, which depending on the format requires different amounts of effort.
Besides with regard to the cheap, fast, work-saving and automated dispatching, a circumvention of this kind of advertising can be expected.
The BGH bases its decision on §§ 1004 para. 1 p. 2 analogue, § 823 para. 1 BGB in connection with the general right of personality, which has been violated by the advertisement. Although the advertisement only slightly affects the recipient, still a mental separation between content and advertisement is necessary. Finally the BGH adds the argument "if everyone did this". Decisive for the BGH is however that the recipient expressly rejected receiving advertisement. However, this contradicts the tone of the decision, according to which even the first email with advertising content (at that time, there was no specific refusal to receive advertising, but the request for an acknowledgement of receipt) was illegal. That is not completely consistent in itself, therefore the question follows whether the BGH assumes that also in an explicitly demanded email apart from the expected contents advertisement may not be contained.
III. Practical consequences: hardly manageable
The ruling of the BGH leaves more question marks than legal certainty. The argument "if everyone did this" does not apply, and it remains unclear to what extent the BGH has made a decision in principle or in an individual case. The BGH certainly did not consider the online retailers, who are obligated to confirm incoming orders in the online store immediately by email, e.g. because of § 312i Abs. 1 S. 1 Nr. 3 BGB. The opinion of the BGH expressed now shows that this email is generally permissible, but the store operator may not attach unsolicited advertising to this email. Although § 7 para. 3 UWG may basically help him, however, the recipient can revoke the (only assumed) consent at any time. It also remains unclear to what extent the BGH claims to have understood the term advertising. If a broad scale in accordance to the guideline on comparative and misleading advertising is to be applied, does this mean that even a simple legal notice with an email address and a link to the website is prohibited advertisement?
The decision of the BGH is mentally reversed. Email and the internet are not postal mailbox advertisements, nor are they printed faxes. The distinction between (wanted) information and (unwanted) advertising in email is literally made in an instant, without paper waste and blocking the fax connection. Any consumer who, as in this case, even agrees to receive the email as such can be expected to do so. This is especially true because he will usually not open emails, if it is already obvious from the header that it is not a personalized but an automatically sent standard email, when he only expected the confirmation of receipt of his request.
As a precaution, in future senders of emails should refrain from advertising in automated emails unless the recipient has given their prior approval. Otherwise warnings will be issued.