Unsolicited telephone advertising has become a serious problem. According to a survey conducted by the forsa institute in autumn 2007, 86 percent of the population feel harassed by unfair advertising calls, 64 percent of those surveyed have been called by a company without consent in recent months. Consumers are therefore to be protected more effectively in future from disturbance of their privacy by unauthorised telephone advertising.
Telephone advertising to consumers without their consent is already expressly prohibited under current law. It constitutes unreasonable harassment under the Unfair Competition Act (UWG) (section 7(2) number 2 UWG). Anyone who acts in contravention of this prohibition can be sued for injunctive relief by, among others, competitors or by organisations such as consumer protection associations. In addition, there is a claim for damages if the caller has acted negligently or intentionally. In the case of intentional action, the UWG provides for a claim to skimming of profits.
However, dubious companies repeatedly ignore this prohibition to the detriment of consumers. Moreover, the enforcement of the current law encounters difficulties in practice. In future, companies that flout the existing ban on unauthorised telephone advertising can be fined. Furthermore, in the future, the telephone number may no longer be suppressed in the case of advertising calls. Violations will also be subject to fines.
In detail, the new law provides for the following improvements for consumers:
- 1. violations of the existing ban on unauthorised telephone advertising to consumers can in future be punished with a fine of up to 50,000 euros. In addition, the law clarifies that an advertising call is only permissible if the called party has previously expressly declared that they wish to receive advertising calls. This prevents callers from invoking declarations of consent that the consumer has given in a completely different context or subsequently.
- 2. in the case of advertising calls, the caller may no longer suppress his telephone number in order to conceal his identity. Many unwanted advertising calls have not been prosecuted so far because it is not possible to determine who called. This is because the companies usually make use of the option to suppress their telephone number. This is now prohibited by the Telecommunications Act (TKG). Violations of the ban on number suppression are subject to a fine of up to 10,000 euros.
- Consumers will have more possibilities to revoke contracts they have concluded on the phone. Contracts for the delivery of newspapers, magazines and periodicals as well as for betting and lottery services can be revoked in the future, just as it is already possible today for all other contracts that consumers have concluded on the telephone. In these areas, unauthorised telephone advertising is particularly common in order to persuade consumers to conclude a contract. Up to now, there has been no right of withdrawal here (§ 312d paragraph 4 numbers 3 and 4 BGB). These exceptions will be eliminated. It does not matter for the right of withdrawal whether the advertising call was unauthorised. The provision allows withdrawal for whatever reason.4 If the consumer has withdrawn from the contract within the time limit, he does not have to fulfil it. The withdrawal period is - depending on the circumstances of the individual case - two weeks or one month and does not start before the consumer has received information about his right of withdrawal in text form (e.g. as an e-mail or by fax). In the case of unauthorised advertising calls, the period is regularly one month.
- 5. the protection against contracts that have been foisted, including the so-called cost traps on the internet, will be improved:
- o a) If the consumer has not been informed of his right of withdrawal in text form, he may in future withdraw from contracts for services concluded by telephone or on the internet. So far, there is no longer a right of withdrawal in such cases if the trader has started to perform the service with the consumer's express consent or if the consumer has initiated the performance himself. Dubious entrepreneurs have deliberately exploited this regulation to foist contracts on consumers over the phone or on the internet. The law removes the basis for this behaviour.b) If the consumer revokes such a contract, he must only pay for the service provided by the trader up to that point if he was made aware of this obligation before the contract was concluded and he nevertheless agreed to the service being provided before the end of the revocation period. This makes the subordination of contracts economically uninteresting, because businesses perform at their own risk.
c) In future, the consumer can still revoke his contractual declaration as long as he has not paid in full. If the business did not inform him before he made his declaration that he would have to pay compensation for the service provided up to that point in the event of a revocation, the business cannot claim anything from him.
- d) In addition, the termination of a continuing obligation or the authorisation to do so in the case of a change of supplier must be in text form in the future if the new supplier acts vis-à-vis the consumer's previous contractual partner. This prevents a new provider from terminating the consumer's contract with his previous provider without a corresponding order from the consumer. This has happened frequently due to dubious providers of telephone services.
The law passed by the Bundestag still has to pass the Bundesrat. However, it is not subject to approval. The law will enter into force the day after it is promulgated.
More information on the topic is available on the website of the Federal Ministry of Justice at http://www.bmj.de/cold-calling.
Source: Press release of the BMJ of 26.3.2009
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)
E-mail: info@goldberg.de
