The I Civil Senate of the Federal Supreme Court had to decide in two cases on the extent to which it is prohibited for companies to inquire about goods or services by means of fax letters or e-mail.
In the first case, a vehicle dealer had faxed a Toyota agency expressing his interest in the immediate purchase of three specific Toyota models - new or used.
In the second case, the provider of an online football game had asked a smaller football club by email whether it could place an advertising banner for its product on the club's website in return for a commission on sales.
According to Section 7 (2) No. 3 UWG, advertising using fax machines or e-mail is prohibited as unreasonable harassment if there is no consent of the addressee. The law does not distinguish between private and commercial addressees. The Federal Supreme Court has now ruled that commercial requests for goods or services are also "advertising" within the meaning of this provision. It is irrelevant for the need of the owner of a fax or e-mail connection to be protected whether he receives unsolicited offers to buy goods or services or whether he receives enquiries about real estate or antiques. Moreover, the receipt of goods and services which a company needs for its business activity on the market indirectly serves to promote its sales.
Thus, the question was whether the addressees in the two cases had agreed to receive offers via the fax machine or by e-mail. In the case of the Toyota agency, the Federal Court of Justice assumed that by publishing the number of the fax connection in generally accessible directories, the agency had declared its consent to customers using the connection for purchase enquiries relating to the company's usual sales activities. Unless the circumstances in an individual case indicate otherwise, this consent also extends to enquiries from commercial customers. The same applied if a company published its e-mail address - for example on its homepage. The fax number and the e-mail address of a company were intended precisely to receive enquiries regarding the range of goods or services.
Applying these principles, the Federal Court of Justice did not consider the vehicle dealer's request to the Toyota agency to be anti-competitive because implied consent was to be assumed in this respect.
On the other hand, the Federal Court of Justice considered the request for an advertising banner for an online football match to be a harassing advertising measure which had to be prohibited. According to the Federal Court of Justice, offering banner advertisements on one's own homepage for a fee is not part of the typical purpose of a football club, nor is the e-mail address provided by a football club on its homepage for contacting the club intended for such enquiries.
Judgements: Federal Court of Justice (BGH) - Judgment of 17 July 2008 - I ZR 75/06 - Royal Cars - OLG Hamm - Judgment of 23 February 2006 - 4 U 164/05 - GRUR-RR 2006, 379 - LG Arnsberg - Judgment of 7. November 2005 - 8 O 106/05 and Federal Court of Justice (BGH) - Judgment of 17 July 2008 - I ZR 197/05 - FC Troschenreuth - OLG Düsseldorf - Judgment of 4 October 2005 - I-20 U 64/05 MMR 2006, 171 - LG Kleve - Judgment of 4 March 2005 - 8 O 120/04
Source: Press release No. 136/2008 of the Press Office of the Federal Supreme Court of 17 July 2008, Herrenstr. 45 a, 76133 Karlsruhe, Tel. 0721-159-5013, Fax. 0721-159-5501, E-mail pressestelle@bgh.bund.de.
Goldberg Attorneys at Law (c) 2008
Attorney at Law Michael Ullrich, LL.M. (Information Law)
E-mail: m.ullrich@goldberg.de
