Web-based e-mail services such as T-Online, GMX, web.de or Gmail are not allowed to simply show users of free basic variants advertising messages directly in the inbox. This controversial practice requires explicit, informed consent within the meaning of the General Data Protection Regulation (GDPR). The Federal Court of Justice (BGH) already decided this on January 13 in a judgment that was only published on Wednesday (Az.: I ZR 25/19).
In the case that has now been finally decided, the municipal works in Lauf ad Pegnitz (StWL) complained in German courts about a relevant advertising measure by the competing electricity supplier Eprimo from the Eon Group. He had commissioned an advertising agency to place advertisements marked “Advertisement” in the e-mail inboxes of users of the free e-mail service T-Online. Comparable inbox advertising is common with many providers.
Unfair competition and similar to spam
According to Stadtwerke, this measure violates the law against unfair competition (UWG). The objected advertising technology differs from the technical model of the e-mail, but from the perspective of the recipient it is confusingly similar to the unwanted e-mail (spam). The StWL therefore sued Eprimo for injunctive relief before the Nuremberg-Fürth district court. This upheld the lawsuit and ordered Eprimo to refrain from such advertising as it constituted an unreasonable nuisance and was misleading.
In the appeal proceedings, however, the Nuremberg Higher Regional Court agreed with the defendant. The BGH, where the dispute ended up being appealed, then submitted questions to the European Court of Justice (ECJ) on the interpretation of EU law. This decided in November that the E-Privacy Directive aims to protect subscribers against invasion of their privacy by unsolicited messages for direct marketing purposes. An unforced opt-in is therefore necessary. Inbox advertising hinders access to the actual e-mails, similar to spam.
The BGH then rejected Eprimo’s appeal against the judgment of the regional court. He ordered the costs of the defendants’ appeals. This must also pay the warning costs in the amount of 1531.90 euros plus interest. The Karlsruhe judges did not consider it necessary to hear the dispute again before the Higher Regional Court.
General consent in advertising not effective
According to the BGH ruling, there is no effective consent to inbox advertising if the user of a free e-mail service “generally agrees to receive advertisements” in order not to have to pay a fee. Rather, it is necessary for the person concerned to be “clearly and precisely informed of the exact modalities of the dissemination of such advertising and in particular that advertising messages will be displayed in the list of private e-mails received” before consent is given.
According to the Karlsruhe judges, the claim for injunctive relief asserted by the public utility company cannot be denied in accordance with Paragraph 7 of the UWG, which implements a relevant clause in the E-Privacy Directive. The general prerequisites for this would be present from the point of view of unreasonable harassment. It is an improper business activity.
In the present case, according to the Karlsruhe judges, the advertising message was displayed from the addressee’s point of view in the inbox of the e-mail system – i.e. in an area normally reserved for private messages. The user could only clear this sector after checking the content of the advertisement and only by actively deleting it in order to get an overview of his exclusively private e-mails. The fade-in hindered access to the actual e-mail in a similar way to unsolicited e-mails (“spam”). This is only permitted with the prior express placement of the participants.
Inbox advertising or personalized banner ads
According to the GDPR, which has meanwhile become decisive, the term “consent” refers to any voluntary, informed and unequivocal expression of will in the form of a declaration or other clear confirmatory action, the BGH further clarifies. The user must have opted in “for the specific case and in full knowledge of the facts”.
Relevant e-mail providers such as GMX and web.de adjusted their declarations of consent immediately after the judgment was published. It now also contains a clause for inbox advertising. Alternatively, there is the option of continuing to use the free variants of the services with personalized classic banner ads.
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