The Berlin Pankow/Weißensee Local Court (judgement of 16 December 2004, file number 101C 1005/14) has ruled that an email confirming the opening of a customer account in an online shop constitutes advertising, provided that the recipient of this email did not initiate the creation of the customer account.
In this case, in the opinion of the district court, the e-mail sent even constitutes a particularly intrusive sales promotion measure (advertising). If, on the other hand, the recipient of the email has previously set up the customer account, the information about this in itself does not constitute advertising in the opinion of the district court.
The problem for online shop operators is that they have to prove that the recipient of this confirmation email has actually set up a customer account in the online shop beforehand.
Otherwise, the confirmation e-mail after opening a customer account constitutes advertising and may only be sent to the recipient if a prior declaration of consent has been given. An e-mail sent to the recipient's e-mail address without prior consent is prohibited as unauthorised advertising.
In order not to receive a warning for sending a confirmation email after opening a customer account, an online shop operator must be able to prove beyond doubt that the email recipient has set up a customer account in the online shop.
The only conceivable way of providing this proof at present is the so-called double opt-in procedure. This procedure is now used for almost every newsletter registration. The double opt-in procedure should therefore also be used when opening a customer account. If a prospective customer creates a customer account in an online shop, he or she should then be sent an e-mail informing him or her that someone with this e-mail address wanted to create a customer account in the e-mail sender's online shop. However, the customer account may only be created when the recipient of this email has clicked on the confirmation link within the email and thereby confirmed the registration.
This e-mail must be completely free of advertising.
However, it must also be taken into account with the double opt-in procedure that in a decision the OLG Munich also considered the double opt-in confirmation e-mail to be impermissible advertising. Should this legal opinion prevail, it would no longer be possible to prove proper registration in the online area in accordance with the law. It can therefore only be hoped that this legal opinion will not prevail. Since other higher regional courts have already not shared the legal opinion of the Munich Higher Regional Court, the Federal Supreme Court will have to deal with this legal question.
In the present case, the Berlin District Court expressly made no statement on the double opt-in procedure after opening a customer account. It merely stated that in the case to be decided it was irrelevant whether "the sending of an email request within the framework of a double opt-in procedure would be permissible", as no double opt-in procedure was carried out in the case to be decided.
The implementation of a double opt-in procedure in connection with the opening of a customer account should therefore be mandatory for every online shop operator.
Please do not hesitate to contact us if you have any questions on this topic.
Goldberg Attorneys at Law 2015
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
