In a recent decision, the Berlin Court of Appeal reaffirmed that sending customer satisfaction surveys via email without the prior consent of the respective customer is generally impermissible.
Such surveys constitute advertising, and even the initial dispatch of a survey via email, apart from the exceptional circumstances outlined in § 7 para. 3 of the UWG (Unfair Competition Act), always requires the customer's prior consent for the transmission of these promotional emails. Without this customer consent for the transmission of the promotional email, such an email constitutes an unlawful interference with the respective commercial enterprise.
The Berlin Court of Appeal elaborated on this in its decision as follows:
„1. The Regional Court rightly assumed in the challenged decision that the email dated October 27, 2016, constitutes advertising by the respondent.
Such customer satisfaction surveys serve, at least in part, to retain surveyed customers and promote future business transactions. Through such surveys, customers are given the impression that the surveying entrepreneur continues to care for them even after the transaction is concluded. The entrepreneur also reminds the customer of its presence, which fosters customer loyalty and enables referrals. This is intended to pave the way for and promote further business transactions (OLG Dresden, GRUR-RR 2016, 462 juris para. 24 f with further references; OLG Köln, GRUR-RR 2014, 80 juris para. 24; Köhler in: Köhler/Bornkamm, UWG, 35th edition, § 7 para. 132).
2. The dispatch of a promotional email (even for the first time) without the prior consent of the addressee constitutes a direct interference with the commercial enterprise. ….
3. The interference with the applicant's established and operating commercial enterprise is also unlawful. The necessary balancing of the conflicting interests of the parties (cf. BGH, loc. cit., E-Mail Advertising II, para. 14) here – contrary to the Regional Court's assumption – weighs against the respondent.
a) According to § 7 para. 2 no. 3 of the UWG – apart from the exceptional circumstances outlined in § 7 para. 3 of the UWG – any advertising using electronic mail without the prior express consent of the addressee constitutes an unreasonable nuisance. This legislative assessment must also be considered when evaluating the general clause of the Civil Code to avoid inconsistencies in valuation. Due to the unreasonably harassing nature of such advertising towards recipients, the sending of a promotional email without prior express consent is fundamentally unlawful (BGH, loc. cit., E-Mail Advertising II, para. 14 with further references).
b) This also applies in the present case to the customer satisfaction inquiry at issue.
In Section 7, Paragraph 3 of the UWG (Act Against Unfair Competition), the legislator has exhaustively regulated the conditions for advertising using electronic mail after the conclusion of a sales transaction via the internet. This provision facilitates such advertising for businesses by not requiring explicit consent from the addressee (but rather only the absence of an objection, Section 7, Paragraph 3, No. 3 UWG). However, a clear and prominent notice is then required (both when collecting the address and with each use) stating that the customer can object to the use at any time without incurring any costs other than the transmission costs at basic rates, Section 7, Paragraph 3, No. 4 UWG. In the present case, such a notice was absent when the applicant's address was collected. Under these circumstances, there is no reason to exceptionally consider the customer satisfaction inquiry at issue here as permissible (cf. also Higher Regional Court Dresden, loc. cit., juris para. 25)...
Source: Berlin Court of Appeal, Decision of 07.02.2017 – Ref.: 5 W 15/17
Goldberg Attorneys at Law 2017
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
Email: info@goldberg.de
