We have often pointed out that the sending of commercial emails generally requires consent.

Now there’s an interesting ruling by the Higher Regional Court of Berlin (Kammergericht Berlin), which considers sending advertising emails several times a week to be unreasonable harassment and therefore spam, if the consent only provides for sending advertising emails once a week (ruling dated 22.11.2022, ref. 5 U 1043/20).

In the case to be decided by the court, the customer had unsubscribed from the daily mailing and consented to the weekly mailing.

According to Section 7 of the German Unfair Competition Act (UWG), a person commits unreasonable and therefore unlawful harassment if they send advertising mailings without the express consent of the sender. In this case, the recipient had agreed to receive the mailings, but with the restriction that they would only be sent once a week.

The advertising company had subsequently written to the customer several times a week with advertisements. The court had to decide whether this conduct was covered by the consent given and was therefore lawful.

The Higher Regional Court held that although effective consent had been given in respect of a newsletter sent once a week, the case had to be assessed as if no consent had been given in respect of the other mailings. As a result, the court upheld the existence of unreasonable harassment as a result of the repeated weekly mailings.

What can you take away from this decision?

As an email marketer, it is important to formulate the opt-in clearly and precisely in the interests of both your company and the customer.

Specifically, this means explaining to the customer exactly what the promotional content will be and how often the newsletter will be sent. If the mailings have different content, the declaration of consent should be differentiated accordingly and the customer should be given the opportunity to subscribe or unsubscribe to different offers. Finally, the sender address from which the newsletter is to be expected should also be indicated.

This will enable the marketer to identify the customer’s preferences and take the appropriate action. This avoids both dissatisfied customers and legal risks.