The VI Civil Senate, responsible inter alia for the law of torts, has ruled that email correspondence with promotional content sent against the express will of a consumer constitutes a violation of the general right of personality.
The plaintiff is a consumer. On December 10, 2013, he contacted the defendant via email requesting confirmation of a termination he had issued. The defendant confirmed receipt of the plaintiff's email under the subject line “Automatic reply to your email (…)” as follows:
“Dear Sir or Madam,”
Thank you for your message. We hereby confirm receipt of your email. You will receive a response as soon as possible.
Kind regards
Your S. Insurance
By the way: Severe weather warnings via SMS, free to your mobile phone. An exclusive service for S. customers only. Information and registration at (...)
New for iPhone users: The S. Home & Weather app, including push notifications for severe weather and many other useful features related to weather and home: (...)
***This email is automatically generated by the system. Please do not reply to it.***
The plaintiff then contacted the defendant again via email on December 11, 2013, and complained that the automated response contained advertising with which he did not agree. In response to this email, as well as another with a status inquiry dated December 19, 2013, the plaintiff received an automated acknowledgment of receipt with the aforementioned content.
With his lawsuit, the plaintiff demands that the defendant be ordered to refrain from contacting him, the plaintiff, or having him contacted, via email for advertising purposes without his consent, if this occurs as in the case of the emails dated December 10, 11, and 19, 2013.
The District Court granted the claim. Upon the defendant's appeal, the Regional Court amended the District Court's judgment and dismissed the claim.
The granted appeal led to the annulment of the appellate judgment and the reinstatement of the District Court's judgment. In any event, the sending of the confirmation email with the advertising addendum dated December 19, 2013, violated the plaintiff's general right of personality because it occurred against his previously declared explicit will.
Judgment of the BGH of 15.12.2015 – VI ZR 134/15
Lower Courts:
District Court Stuttgart-Bad Cannstatt – Judgment of April 25, 2014 – 10 C 225/14
Regional Court Stuttgart – Judgment of February 4, 2015 – 4 S 165/14
Source: Press release of the BGH dated 16.12.2015
Goldberg Attorneys 2015
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
Email: info@goldberg.de
