The Kammergericht Berlin (Berlin Court of Appeal) has once again correctly stated in a decision that the sending of customer satisfaction surveys by email without the prior consent of the respective customer is generally inadmissible.
Such surveys constitute advertising and also the first-time survey by e-mail always requires the prior consent of the customer to the sending of these advertising e-mails, apart from the exceptional case of Section 7 (3) UWG. Without this consent of the customer to the sending of the advertising e-mail, this e-mail constitutes an unlawful interference with the respective business.
The Kammergericht stated in its decision:
"1. the District Court correctly assumed in the contested decision that the email of 27.10.2016 is advertising by the respondent.
At the very least, such customer satisfaction surveys also serve to retain customers surveyed in this way and to promote future business transactions. Through such surveys, the customer is given the impression that the surveyed entrepreneur is also making an effort for him after the conclusion of the business. In addition, the entrepreneur is remembered by the customer, which serves to increase customer loyalty and enables further recommendations. This is also intended to pave the way for further business transactions and to advertise for them (OLG Dresden, GRUR-RR 2016, 462 juris marginal no. 24 f mwN; OLG Cologne, GRUR-RR 2014, 80 juris marginal no. 24; Köhler in: Köhler/Bornkamm, UWG, 35th edition, § 7 marginal no. 132).
2) The sending of an advertising e-mail (even for the first time) without the prior consent of the addressee constitutes a direct interference with the business. ....
The interference with the established and practised business of the applicant is also unlawful. The necessary weighing of the conflicting interests of the parties (see BGH, loc.cit., E-Mail-Werbung II, para. 14) is - contrary to the assumption of the Regional Court - to the detriment of the defendant.
a) Pursuant to Section 7 (2) No. 3 UWG, any advertising using electronic mail without the prior express consent of the addressee constitutes unreasonable harassment - apart from the exceptional case of Section 7 (3) UWG. This legislative assessment is also to be used in the assessment of the general clause of the Civil Code in order to avoid contradictions. Due to the unreasonably annoying character of such advertising towards the recipients, the sending of an advertising e-mail without prior express consent is generally unlawful (BGH, loc.cit., E-Mail-Werbung II, para. 14 mwN).
b) This also applies in the present case to the customer satisfaction enquiry at issue.
In Section 7 (3) UWG, the legislator has conclusively regulated the requirements for advertising using electronic mail after a sales transaction has been concluded via the internet. In this, the legislator facilitates such advertising for the entrepreneur because no express consent of the addressee is required (but only a lack of objection, Section 7 (3) No. 3 UWG). What is necessary, however, is a clear and unambiguous indication (when the address is collected and each time it is used) that the customer can object to the use at any time without incurring any costs other than the transmission costs according to the basic rates, Section 7 (3) no. 4 UWG. Such a notice was missing in the present case when the applicant's address was collected. Under these circumstances, there is no reason to consider the customer satisfaction enquiry at issue here as permissible by way of exception (compare also OLG Dresden, loc.cit., juris marginal no. 25)......"
Source: Kammergericht Berlin, Order of 07.02.2017 - Ref.: 5 W 15/17
Goldberg Attorneys at Law 2017
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
