Direct mail, preferably by telephone, is a popular method of addressing a target group directly. The effort is high, but the success is greater than with anonymous and general advertising. However, this also has its downside: telephone advertising is only permissible and allowed under special legal conditions! In particular, you must observe the regulations of the Unfair Competition Act (UWG) and the General Data Protection Regulation (DSGVO). The topics of "consent" and "double-opt-in procedure" play an important role here.
Is direct telephone advertising allowed?
At the end of August 2018, spouses were called by a call centre from Nuremberg on behalf of the plaintiff company for advertising purposes. The plaintiff is active in the field of insurance brokerage, investment and financing. At no time did the spouses consent to being called by the plaintiff or by a company commissioned by it for advertising purposes. The spouses then turned to the competent supervisory authority.
The competent supervisory authority prohibited the plaintiff from making calls for advertising purposes if the plaintiff could not prove the consent of the persons called. Furthermore, the plaintiff had to delete personal data if it could not prove consent.
The action against this order was unsuccessful in the first and second instant.
When is telephone advertising prohibited? When is it illegal telephone advertising?
The following points were decisive for the competent supervisory authority:
- The plaintiff did not prove the spouses' consent to the telephone call pursuant to Art. 6 para. 1 lit. a) DSGVO.
- The prerequisite in advertising with a telephone call pursuant to Section 7 (1) No. 2 UWG was also not met.
- Finally, a balancing of interests according to Art. 6 para. 1 lit. f) DSGVO would also be to the detriment of the plaintiff.
Is "double-opt-in" consent sufficient for telephone advertising?
The plaintiff's defence was that the spouses had consented to the call by "double-opt-in procedure".
However, two things were problematic about this:
- The e-mail address used in the "double-opt-in procedure" did not belong to the spouses at all.
- The "double-opt-in procedure" can at best be used to prove consent to receive e-mail advertising. There is no necessary connection between the e-mail address used in the "double-opt-in procedure" and the telephone number given. The advertiser does not even know whose telephone number he is obtaining. The "double-opt-in procedure" is therefore not suitable for documenting and, if necessary, proving the required consent to telephone advertising.
Can one invoke legitimate interests in telephone advertising?
In vain, the plaintiff argued with her legitimate interest under Art. 6(1)(f) DSGVO.
According to the court, Art. 6 para. 1 lit. f) GDPR is not applicable because the regulation on admissibility in telephone advertising pursuant to Section 7 para. 1 no. 2 UWG is more specific. Even if Article 6(1)(f) of the GDPR were applicable, the balance of interests would be to the plaintiff's disadvantage. On the one hand, data subjects do not have to expect to be called by companies. This already justifies the need for protection of the data subjects. Secondly, a violation of Section 7 (1) no. 2 UWG must be considered in favour of the data subjects.
Can consents be given by telephone?
The plaintiff had tried to save herself with the following argumentation:
In the context of the first call, the called party would be asked for their consent for the subsequent actual advertising. If consent was given, the subsequent call would be legally admissible.
The plaintiff was not successful in this. Even the first call must be covered by a previously granted consent. Otherwise, the protection against abuse and harassment of § 7 para. 1 no. 2 UWG and also of Art. 6 para. 1 lit. f) DSGVO could be circumvented.
How can telephone advertising be legally permissible?
You have virtually no leeway when it comes to telephone advertising. The requirements of the UWG and the GDPR are as clear as they are high: You must prove the consent of the holder of the telephone number. This would be conceivable as follows:
- If you approach a potential interested party on the spot, you could ask them to call you on their telephone number. The phone number of the potential prospect, along with their name and address would then need to be included in the consent form.
- In the case of consent forms to be obtained online, you could combine the "double-opt-in procedure" with a verification procedure via SMS. You would have to send an SMS with a confirmation code to the telephone number in question. The sender would have to include this confirmation code in the confirmation e-mail as part of the "double-opt-in procedure". This would ensure that the owner of the confirmation e-mail is also the owner of the telephone number.
Please note that these are only initial suggestions. In individual cases, it would have to be examined in detail whether your project meets the legal requirements.
Source: OVG of the Saarland, decision of 16.02.2021, ref. no. 2 A 355/19
Previous instance: VG des Saarlandes, judgement of 29.10.2019, ref. no. 1 K 732/19
We will be happy to advise you on all aspects of IT/IP and data protection law. Of course, we will also help you to implement your telephone advertising and any other advertising and/or marketing measures in compliance with the law.
GoldbergUllrich Lawyers 2021
Julius Oberste-Dommes LL.M. (Information Law)
Lawyer and
Specialist lawyer for information technology law
