The issue in brief

Recently, the German Federal High Court of Justice (BGH) looked at the question of whether a pre-formulated declaration of consent was “concrete” enough to serve as permission for the sending of commercial emails.¹ The CSA must also frequently deal with this issue when confronted with complaints. Around 50% of the disputed consents were deficient when it came to how concrete they were. The core problem is due to the declaration of consent being formulated too broadly and therefore inadmissible as general consent. So, let’s have a look at the requirements for how concrete a pre- formulated declaration of consent needs to be.

General requirements for valid consent

In general, consent to the sending of commercial emails is only valid when the declaration of intent is made without any pressure, actively, separately, for the concrete case at hand and with full knowledge of the circumstances.²

“For the concrete case and with full knowledge of the circumstances” – Concretization by court rulings

These quite general requirements “for the concrete case and with full knowledge of the circumstances” has been concretized by a number of court rulings, most recently in Germany by the Higher Regional Court (OLG) Frankfurt and the Federal High Court of Justice (BGH). According to these rulings, the declarer must be given the opportunity to inform themselves about the consequences of giving consent. It must be clear to the person giving consent to which products or services of which companies the content applies. The consent should be clear and comprehensible to the user. ³

The Higher Regional Court (OLG) Frankfurt ruled that these conditions were not met in the following cases:

•  The naming of 59 sponsors, whereby individual sponsors could be deselected(4):
  In this case ruled on by the Higher Regional Court (OLG) Frankfurt, a lottery named 59 sponsors and the user could deselect individual sponsors after giving general consent. If no selection was made, the lottery organizer selected 30 sponsors themselves. This constellation did not meet the requirements for concrete consent. The Court weighed the effort required to deselect and the participation in a lottery(5). It reached the conclusion that the user would most likely not make the effort to deselect individual sponsors. Furthermore, the user must be given the opportunity to acknowledge the circumstances of consent in a clear and comprehensible manner. The content and extent of the declaration must be realistically possible to check and cannot run the risk of leading to hasty consent(6). In summary, such a construction – also due to the lack of active consent – is not admissible.
• Specification of the sponsors (= sector names)(7):
  In this verdict on the collection of data for a lottery with 50 sponsors, there was already veiled criticism about the high number of sponsors. Whether such a high number is inadmissible in itself was left open, as the focus was on the type and specification of the sponsors. In terms of the naming of sponsors, the Higher Regional Court (OLG) Frankfurt explicitly stated that the user must be clearly informed about which sponsors will contact them later about which products or services. Sector names which need further interpretation are not sufficient. The Court listed the inadequate examples shown in the box on the right.

In a verdict on 17 March 2017, the German Federal High Court of Justice (BGH) also confirmed that the products and services which will be advertised must be clearly defined. Further, the ruling made clear that the consent is invalid as soon as the sponsors include marketing companies which design and carry out marketing campaigns for clients, as here the user loses the overview of who is involved(8).

Example for invalid sector names

“Media and magazines”

“Capital-forming benefits”

“Pensions”

“Finance and insurances”

“Telecommunications products or offers”

“Email marketing for companies”

“Mail-order offers”

“Newsletters from the … .com/de portal with various products, e.g. clothing, travels, discounts”

Still relevant despite the European General Data Protection Regulation?

These requirements will still apply once the European General Data Protection Regulation (GDPR) comes into force on 25 May 2018. Recital 32 and Article 4 (11), GDPR, explicitly mention the requirement that the consent must be given for a specific case, that it should be informed, and represent an unambiguous declaration of consent.

Solution/Recommendation

The recommendation for legally compliant email marketing and, in particular for the collection of addresses, is to formulate the declaration of consent as concretely as possible. This can be done with a clear delineation of the products and services that are to be advertised. Further, make sure there are just a small number of sponsors. The user should be able to see at a glance what they can expect.

Authors: Legal Team of the Certified Senders Alliance

¹ German Federal High Court of Justice (BGH) ruling: BGH VI ZR 721/15.

² Legally conform interpretation of Article 13, Regulation 2002/58/EG, Higher Regional Court (OLG) Frankfurt 6 U 93/15 Rn. 18, German Federal High Court of Justice (BGH) VI ZR 721/15 Rn. 24.

³ Higher Regional Court (OLG) Frankfurt 6 U 93/15 Rn. 19, German Federal High Court of Justice (BGH) VIII ZR 348/06

4 Higher Regional Court (OLG) Frankfurt 6 U 30/15.

5 Higher Regional Court (OLG) Frankfurt 6 U 30/15 Rn. 24ff.

6 Higher Regional Court (OLG) Frankfurt 6 U 30/15 Rn. 24.

7 Higher Regional Court (OLG) Frankfurt 6 U 93/15.

8 German Federal High Court of Justice (BGH) VI ZR 721/15 Rn. 25.