Currently, a ruling by the Higher Regional Court of Munich (OLG München) is worrying the entire "IT landscape". The OLG Munich has ruled that the confirmation email in the context of the so-called "double opt-in procedure" constitutes inadmissible advertising if the sender of the confirmation email cannot prove the express prior consent of the addressee and recipient of the email for the sending (OLG Munich, ruling of 27.09.2012, ref. 29 U 1682/12).
The so-called double opt-in procedure is used in particular when registering/subscribing to a newsletter. If a person orders a newsletter on an internet site, an e-mail is sent to the e-mail address provided during registration, "confirming" that someone has registered for a newsletter using this e-mail address (confirmation e-mail). The recipient of this email must then click on a link in this email and thereby confirm the registration and order of the newsletter once again. Only after this confirmation is the registration process completed and a newsletter will be sent to the specified e-mail address in the future.
The OLG Munich has now taken the view that even an email which, within the framework of a "double opt-in procedure", only informs someone that they have registered for a newsletter with this email address and asks them to confirm a newsletter order (confirmation email) already constitutes advertising. In the opinion of the OLG Munich, the legal classification of such confirmation e-mails as advertising is in line with an understanding of the concept of advertising oriented towards the goal of sales promotion
Therefore, the OLG further assumed that it constitutes a violation of Section 7 II No. 3 UWG if the sender of this confirmation e-mail cannot present and prove an express consent of the addressee for the sending of this e-mail. Pursuant to Section 7 (II) No. 3 UWG, apart from the exceptional case of Section 7 (3) UWG, any advertising using electronic mail without the prior express consent of the addressee constitutes unreasonable harassment and is unlawful. The sender of the e-mail (advertiser) bears the burden of proof and demonstration for proving that the recipient has consented to the sending of e-mail advertising. For such proof of consent, it is necessary, in the opinion of the OLG Munich, that the advertiser fully documents the specific declaration of consent. In the case of an electronically transmitted declaration of consent, this requires its storage and the possibility to print it out at any time. Procedures in which it is unclear whether a declaration of consent actually originates from the recipient are unsuitable for the required proof in the opinion of the OLG Munich.
Up to now, opinions in the literature as well as in case law have predominantly assumed that the first e-mail (confirmation e-mail) sent after a registration for a newsletter does not constitute advertising and that therefore there must be no consent for the sending of this e-mail.
Unfortunately, the OLG Munich has now seen this differently. The decision of the OLG Munich has therefore caused considerable excitement.
This applies in particular in consideration of the fact that in the context of a double opt-in procedure, consent that is sufficient in the opinion of the OLG Munich is unlikely to be obtained.
Even logging the complete login process with all information does not change this.
Insofar as the confirmation email is legally regarded as advertising within the scope of the "double opt-in procedure", the newsletter sender requires the prior consent of the addressee of the confirmation email for the sending of this email. The newsletter sender bears the full burden of proof that consent to send the confirmation email has been given. The sender must therefore prove who/which specific person has declared consent. If the sender is unable to prove this, the sending of the confirmation email is illegal. The logging of an IP address of the applicant and the storage of further information does not change this. An IP address does not allow any conclusions to be drawn about the person acting. An IP is initially just a long number. At most, the IP address can be used to determine the owner of the connection, provided that the provider gives the corresponding information at all. In any case, there should be no legally enforceable claims for information. And even if the owner of the connection is identified, the IP does not prove that the owner of the connection has also acted and/or is the owner of the disputed email address. This is especially true since internet connections are often used by several persons more or less simultaneously. The Federal Court of Justice (BGH) also expressly stated in its ruling of 10 February 2011, ref.: I ZR 164/09, that there is no facilitation of proof for the sender of the email on this point.
It therefore only remains to be seen whether other courts will follow the legal opinion of the OLG Munich. It is to be hoped that the legal opinion of the OLG Munich will not prevail on this issue and that a different decision of the BGH will be made in the near future. Otherwise, a legally secure registration for a newsletter would probably have to be done by letter in the future.
So much, then, for Germany as a technology location.
Due to the decision of the OLG Munich, all users of a double opt-in procedure are currently exposed to the risk of a warning notice, which should not be underestimated. If you as a provider of a newsletter would like to avoid any risk of a warning notice, you currently only have the option of suspending a new registration for your newsletter within the scope of a double opt-in procedure until this legal question has been clarified by the court of last instance.
Our lawyers and specialist lawyers will be happy to answer any questions you may have on this topic.
Goldberg Attorneys at Law 2013
Michael Ullrich, LL.M. (Information Law)
Attorney at Law and
specialist attorney for information technology law
