The VI Civil Senate, which is responsible for tort law, among other things, ruled that e-mails sent against the declared will of a consumer constitute a violation of the general right of personality. Civil Senate has ruled that e-mails with advertising content sent against the declared will of a consumer constitute a violation of the general right of personality.
The plaintiff is a consumer. He contacted the defendant by email on 10 December 2013 with a request for confirmation of a termination he had given. The defendant acknowledged receipt of the plaintiff's email under the subject "Automatic reply to your mail (...)" as follows:
"Dear Ladies and Gentlemen,
Thank you for your message. We hereby confirm receipt of your email. You will receive an answer as soon as possible.
With kind regards
Your S. Insurance
By the way: severe weather warnings sent to your mobile phone free of charge by SMS. An exclusive service only for S. customers. Info and registration at (...)
New for iPhone users: The S. Haus & Wetter app, incl. push notifications for severe weather and many other useful features related to weather and living: (...)
***This email is automatically generated by the system. Please do not reply to it.***
The plaintiff then contacted the defendant again by email on 11 December 2013 and complained that the automated reply contained advertising with which he did not agree. The plaintiff also received an automated acknowledgement of receipt with the above content to this email as well as another with a request for a status report dated 19 December 2013.
By his action, the plaintiff demands that the defendant be ordered to refrain from contacting or having contact made with him, the plaintiff, by e-mail for the purpose of advertising without his consent, if this happens as in the case of the e-mails of 10, 11 and 19 December 2013.
The district court allowed the action. On the defendant's appeal, the Regional Court amended the judgement of the Local Court and dismissed the action.
The allowed appeal led to the reversal of the appeal judgement and the restoration of the judgement of the Local Court. In any case, the sending of the confirmation email with an advertising addendum on 19 December 2013 violated the plaintiff's general right of personality because it was sent against his previously declared express will.
Judgment of the Federal Supreme Court of 15 December 2015 - VI ZR 134/15
Lower courts:
AG Stuttgart-Bad Cannstatt - Judgment of 25 April 2014 - 10 C 225/14
Stuttgart Regional Court - Judgment of 4 February 2015 - 4 S 165/14
Source: BGH press release of 16.12.2015
Goldberg Attorneys at Law 2015
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
