The strict requirements imposed by German law on the admissibility of advertising calls to consumers are compatible with European Union law. This was decided by the I. Civil Senate of the Federal Court of Justice, which is responsible for competition law, among other things.
In 2003, AOK Plus, the general local health insurance fund for Saxony and Thuringia, had undertaken vis-à-vis the Consumer Advice Centre Saxony to refrain from calling consumers for advertising purposes without their consent. Furthermore, it had undertaken to pay a contractual penalty of € 5,000 for each infringement. In September 2008, two consumers received advertising calls from a call centre commissioned by AOK Plus. The consumer centre then filed a claim against AOK Plus for payment of € 10,000.
The defendant AOK claimed to have received the consent of the called persons in the so-called double opt-in procedure: The consumers had taken part in online competitions, entered their telephone number there and, by ticking a box, had also declared their consent to telephone advertising. Thereupon, an email with the reference to the registration for the lottery (so-called "check mail") was sent to the given email address, which they confirmed by clicking on a link contained therein.
The consumer association's action was successful before the Regional Court and the Higher Regional Court of Dresden.
The Federal Supreme Court dismissed the defendant's appeal. German law, by always classifying unsolicited advertising calls as unreasonable harassment and thus unfair, goes beyond the European Union's Unfair Commercial Practices Directive. However, due to an opening clause contained in the ePrivacy Directive, the German legislator is entitled to make telephone advertising to consumers generally dependent on their prior express consent (so-called "opt in").
In the case in dispute - according to the BGH - the defendant AOK had not proven the consent of the consumers called. For this proof, in particular the printout of an email of the called consumer in which he expressly agrees to the advertising can be considered. The storage of the corresponding e-mail is easily possible and reasonable for the advertiser. The defendant AOK did not provide this evidence, but only generally referred to compliance with the double opt-in procedure.
This electronically conducted double opt-in procedure is unsuitable from the outset to prove consumers' consent to advertising calls. Although it can be assumed upon presentation of the electronic confirmation requested in this process that the application for participation in the online lottery - containing the consent to advertising calls - actually originates from the e-mail address provided, this does not ensure that the telephone number provided is actually the connection of the consumer. However, this does not ensure that the telephone number provided is actually the connection of the sender of the confirmation e-mail. There can be numerous reasons for the accidental or intentional entry of a false telephone number. However, the law mandatorily requires that the subscriber actually called has expressly declared his or her consent before the advertising call.
Judgment of the Federal Court of Justice of 10 February 2011 - I ZR 164/09 - Telefonaktion II
LG Dresden - Judgment of 8 April 2009 - 42 HKO 42/08
Dresden Higher Regional Court - Judgment of 22 September 2009 - 14 U 721/09
Source: Press release of the BGH
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)