Sending advertising emails after setting up a user account without separate consent is an unauthorised marketing measure - with legal consequences.
The Berlin Regional Court ruled in the case of an operator of an online shop that automatically sent messages with advertising content after new users had registered. As described by the law firm Dr Bahr, a consumer had received a message to verify his email address after creating a customer account. At the end of this email was a notice stating that the email address would be used to send promotional messages in future, together with a reference to the right to object at any time.
However, there was no explicit option to reject the advertising mailings. After the recipient had confirmed their email address, they actually received advertising content from the shop - without ever having expressly consented to such use.
The court clarified that the promotional use of contact data without voluntary and unambiguous consent violates the provisions of the Unfair Competition Act (UWG). Legitimate consent requires an active and informed decision by the data subject, which was not the case here. The technical design of the message effectively forced users to consent to receiving advertising, as simple verification without simultaneous consent to advertising was not provided for.
Furthermore, no exception was recognised for so-called existing customer advertising. In this case, there was neither an order nor a comparable contract - which meant that this legal basis no longer applied.
The decision clearly shows that advertising measures in the digital space must be properly implemented in terms of data protection and competition law. Companies are well advised to always obtain consent for advertising separately, voluntarily and transparently.
Source: www.onlinehaendler-news.de