3. Legal notice
The legal notice is an important pillar in the design of emails sent for business purposes. Nevertheless, it can be observed that it is often not designed in a legally effective manner.
What is the intent and purpose of a legal notice? The obligation to provide a legal notice is set to ensure a minimum level of transparency and information on the Internet for the protection of consumers and to strengthen trust in e-commerce. Its legal basis can be found in the EU E-Commerce Directive 2000/31/EC and in the national EU transpositions, such as the German Telemedia Act (TMG). The information obligations in particular serve to establish the identity of the sender, thus facilitating any legal proceedings in the event of a dispute and also enabling the recipient of the newsletter to contact the sender’s contractual partner with questions and suggestions in connection with the advertising. Therefore, the legal notice obligation also applies to advertising on a website, and not only that which is sent by email. It concerns all providers of business-based telemedia, which is usually offered in return for payment. The following describes the CSA’s requirements for its senders’ compliance; these requirements are derived from the prerequisites of the German TMG, EU law and established case law in Germany and at EU level.
3.1 Legal grounds and conditions
The legal notice obligation arises from Art. 5 (1) of the EU E-Commerce Directive 2000/31/EC and, in Germany, from Section 5 (1) of the German Telemedia Act (TMG) (“General Information Obligations”).
Accordingly, at least the following information must be available in a legal notice:
Name and address of the sender or contractor
The name and address include the company name as well as the full address at which it is established. In the case of a so-called natural person, the first name and surname must be stated in addition to the address. The first name must be written out in full. The full address means the street with the house number, as well as the postcode and the geographical locality. A postbox is not sufficient here, as the address must be a so-called loadable address.
In the case of legal entities: the legal form and the authorised representative
The legal form may be given in an abbreviated version, but it is strictly mandatory. This means that, in Germany, a limited liability company must at least state “GmbH”. The same applies, for example, to the limited partnership (in German, KG), civil law partnership (in German, GbR), general commercial partnership (in German, OHG), and the registered association (in German, e.V.).
The authorised representative of this legal entity must again be specified with the first name and surname. The options vary depending on the legal form, but in principle it is sufficient to indicate one authorised representative, even if there are several.
Specifications of the corresponding register
Furthermore, specifications on the commercial, association, partnership or cooperative register as well as the corresponding register number (if a registration exists) must be provided in accordance with Section 5 (1) No. 4 of the German Telemedia Act (TMG). This means that the register must be named with the register number.
If available, the specification of the value-added tax identification number or the business identification number
The VAT ID number pursuant to Section 27a of the German Value-Added Tax Act (UStG) or a business identification number pursuant to Section 139c of the German Fiscal Code (AO) must be stated if available. This does not mean that such a number must be obtained because of Section 5 (1) No. 6 of the German Telemedia Act (TMG), but merely that it must be specified if it is mandatory under the UStG or AO.
Pursuant to Section 5 (1) No. 2 of the German Telemedia Act (TMG), the legal notice must also specify information that enables fast electronic contact and direct communication with the provider, including the address of the electronic mail. Accordingly, the email address is always mandatory. The user can select the further contact option from the telephone number or a call-back system, from the fax number, or from a contact form.
It should be noted that it is not sufficient that an automated email initiated by the addressee is sent to the sender stating that the email is not read and that one should choose another communication channel as referred to in the email (Highest State Court (KG) Berlin, judgement of 07.05.2013, file no. 5 U 32/12). This would not fulfil the requirements of Section 5 (1) No. 2 of the German Telemedia Act (TMG), which explicitly refers to the email. Therefore, when using an automated reply email, care should be taken not to completely reject (further) communication by email.
According to the ECJ, it is not mandatory to specify a telephone number in the legal notice, as there are other ways of contacting the service provider quickly – for example, by specifying a contact form. This applies, for example, if the service provider can answer enquiries within 30 to 60 minutes. However, the provider must also answer by telephone if this is requested by the user who does not have Internet access (ECJ, judgement of 16.10.2008, file no. C 298/07).
What was in dispute was whether the telephone number in distance selling – i.e., in the case of contracts concluded away from business premises and distance selling contracts – had to be specified in a legal notice. This is supported by the provision in Art. 246a of the German Introductory Act to the Civil Code (EGBGB). Under Art. 1(1)(2), the telephone number is explicitly mentioned as a mandatory specification. The ECJ has since ruled that the German legislator did not correctly transpose EU law, as there was no room for manoeuvre due to the full harmonisation principle of the Consumer Rights Directive (file no. C-649/17). In Art. 6(1)(c) of the Consumer Right Directive (Directive [EU] 2011/83/EU), the telephone number is mentioned as a possible specification “where applicable” and not as a mandatory specification. The German Federal Court of Justice (BGH) concurred with the ECJ and ruled that the trader is only obliged to specify a telephone number if the trader already has a telephone or fax number and does not use it solely for purposes other than contacting consumers (BGH, judgement of 19.12.2019, file no. I ZR 163/16). If there is already a telephone connection for contact with customers, this must also be mentioned; if there is no connection, other means of communication may also be chosen, including those not noted in the Consumer Right Directive, such as a chat or call-back system.
The telephone number provided must not be a profit-making call number (BGH, judgement of 25 February 2016, file no. I ZR 238/14). The costs of an established service number may not exceed the costs of a call to a normal geographical fixed network number or a mobile number. Insofar as this limit is observed, it is irrelevant as to whether the trader in question makes a profit with this service number (ECJ, judgement of 02.03.2017, file no. C-568/15).
As a result, it is always recommended to specify the telephone number in the legal notice. On the one hand, it provides another fast, direct and efficient communication channel in addition to the email address; on the other hand, it rounds off the provider’s customer-friendliness and respectability.
In certain constellations, further conditions must be met:
- Pursuant to Para. 1 No. 3, information on the permanent supervisory authority must be specified for certain professional groups if the service is offered within the scope of an activity that requires authorisation by the public authorities, such as catering establishments, operators of gaming arcades, lawyers, and insurance companies.
- Legal professional specifications such as the associated chamber, the legal professional title and the professional regulations must be additionally indicated by the conventional liberal professions pursuant to Para. 1 No. 5; this applies, for example, to doctors, veterinarians, pharmacists, lawyers, etc.
- Specifications about the status of companies that are being dissolved or liquidated must be provided pursuant to Section 5 (1) No. 7 of the German Telemedia Act (TMG) if the company is in such a process; the same applies, for example, to the opening of insolvency proceedings.
- If journalistic-editorial content is offered or published, a responsible party must also be specified with name and address in accordance with Section 55 (2) of the German Interstate Treaty on Broadcasting (RStV). Journalistic-editorial content is usually characterised by an orientation towards facts with a degree of relevance. This also includes the management of topic-specific user contributions when a selection of content is made. The aim is usually to contribute to public discourse and the formation of opinion. The classic example would be a newspaper, where the Managing Director and Editor-in-Chief must then be named as the responsible parties.
- Providers of generally accessible telemedia that provide content that is developmentally impairing or youth-endangering, as well as providers of search engines must, according to Section 7 (1) Sentence 3 of the German Interstate Treaty on the Protection of Minors in the Media (JMStV), keep essential information about the youth protection officer available if they have more than 50 employees or more than ten million visits on a monthly average in the course of one year. Although this does not necessarily have to be provided in the email legal notice, it is recommended because, as with the legal notice, the specification must be easily recognisable, immediately accessible and constantly available. The developmentally impairing or youth-endangering content is specified in Section 4 Para. 2 of the German Interstate Treaty on the Protection of Minors in the Media (JMStV) and Section 5 JMStV.
The eco Youth Protection Officer Service is happy to support you in the implementation of this obligation or in the voluntary appointment of a Youth Protection Officer. For further information, please click here.
These provisions apply to all email senders who trade in their commercial or self-employed professional capacity (traders) and thus pursue economic interests, whether directly or indirectly. If goods or services are offered in return for payment, it must always be presumed that they are being offered on a businesslike basis. In this respect, so-called transactional emails, also called system emails, must be accompanied by a legal notice. They are characterised by the fact that they are usually sent in an automated manner, activated by certain actions of users or by certain business transactions in online shops, online portals, booking systems, communities, social networks, and comparable systems about which the user must be informed.
It is only in the instance of exclusively private use (“personal or family purposes”, see Section 18 of the German Interstate Media Treaty (MStV), Section 55 (1) of the German Interstate Treaty on Broadcasting (RStV)) that neither a website nor an email have to contain a legal notice – unless the use of the service involves advertising.
Sample legal notice of a GmbH
Sample company GmbH
represented by the Managing Director
Sample street 1
12345 sample city
Telephone: 0123-45 67 89
Fax: 0123-65 43 21
VAT ID: DE 123456789
Local court sample, HRB 1234
In email traffic, the requirements of easy recognition, immediate accessibility and constant availability of the legal notice pose fewer fundamental problems than may be the case with a website. The legal notice and the signature are usually placed at the end of the actual message and can reasonably be introduced with the heading “Legal Notice”. However, it could also be headed as “Contact” or “Provider Identification”. It is important to ensure sufficient pixel density and font size. The legal notice of an email should not be automatically hidden or only activated through the use of a script, but should be permanently displayed. According to Section 5, Para. 1, Sentence 1 of the German Telemedia Act (TMG), the immediate accessibility of the legal notice prohibits the setting of a link to the provider’s website, which contains a complete legal notice. The reason for this is the danger of a technical failure of the website. The inaccessibility would then ultimately lead to the fact that no legal notice is actually provided. In case law, it is considered to be acceptable if up to two clicks are required to access the legal notice. However, this applies more to the case of an Internet site. Immediate accessibility can therefore only be guaranteed by means of a complete textual legal notice. A corresponding regulation already exists in Section 35a of the Act on Limited Liability Companies (GmbHG), which lays down an analogous regulation for the GmbH. According to this, all relevant information about the GmbH must be recognisable in all business letters of the GmbH. This also includes all electronic communication.
For this reason, the CSA has taken this baseline as the grounds to include a corresponding clause in Section 2.5 of its criteria, which requires an easily recognisable legal notice as a full text.
Moreover, in commercial business transactions, emails are treated the same as business letters. This means that the specifications in the emails must correspond to the specifications that must also be provided in business letters. The details are defined in the various regulations of the special laws (according to German law: Articles 37a Para. 1, 125a Para. 1 of the German Commercial Code (HGB), Section 35a Para. 1 Sentence 1 of the Act on Limited Liability Companies (GmbHG), Art. 80 Para. 1 Sentence 1 of the German Stock Corporation Act (AktG), Art. 25a Para. 1 of the German Cooperative Societies Act (GenG)).
It is therefore essential that a business letter-type email contains the following obligatory specification in its signature:
- Exact specification of the company
- Place of establishment
- If applicable, a loadable address (Art. 130 No. 1 Code of Civil Procedure (IZO) with a business address)
- If applicable, registration court and registration number
- Information on the authorised representatives
For business letters, it is not mandatory to have specifications for direct contact, such as the telephone or fax number.
3.2 Recognisability of the commercial content
The provision of Section 6 of the German Telemedia Act (TMG) regulates special obligations in commercial communication. The principle of truth and clarity applies here.
An email containing advertising must be clearly recognisable as such (Section 6 (1) No. 1 TMG). Thus, an email advertising a product must not be “disguised” as a private message. The recipient of the email should be able to recognise at first glance what it is about (= advertising) without having to delve deeper into the content. According to the legislative statement, clear recognisability therefore means that the commercial communication is set apart from other content or information.
3.3 Recognisability of the sender
According to Section 6 (2) of the German Telemedia Act (TMG), if commercial communications – i.e., advertising – are sent by email, neither the sender nor the commercial nature of the message may be concealed or disguised in the header or subject line. Concealment or disguise occurs when the header and subject line are intentionally designed in such a way that the recipient receives no information or misleading information about the actual identity of the sender or the commercial nature of the message before inspecting the content of the communication.
A disguise of the sender information would be the case, for example, if the sender specification suggests that the message comes from an official office (citizens’ office, a police station, registration office, etc.), from a business partner, or from the addressee’s circle of friends. The use of a false or non-existent IP address in the sender information or the use of another sender’s address is also prohibited.
The prohibition of sender concealment also applies to messages that do not contain any specifications about the sender’s identity. A case of concealment would exist, for example, if senders do not fill in the sender line in the header, completely remove the header, or anonymise the message by sending it via a so-called remailer.
Section 6(2) also prohibits the concealment or disguise of the commercial nature of a message. If deliberately misleading statements are made in the subject line of the email (e.g., “Warning”, “Last reminder”, “Attention, particularly urgent”, “Your sanctioning proceedings”, etc.) in order to be misleading about the commercial nature of the message, there is an impact on the recipient’s freedom of choice – as is the case when the sender is concealed or disguised – in order to achieve the highest possible opening rates.
The provision is not intended to cover minor cases, such as instances in which companies have inadvertently made misleading specifications because they have not adequately informed themselves about the requirements of the information obligations as part of commercial communications. Rather, the senders who are specifically intent on deliberately deceiving the recipient are to be sanctioned. Accordingly, Section 6 (2) Sentence 2 of the German Telemedia Act (TMG) sets out in concrete terms what is meant by purposeful concealment and disguise.
3.4 Provision of fines
An incomplete legal notice, or the lack of recognisability of the commercial nature or the sender of the email may constitute an administrative offence pursuant to Section 11 of the German Telemedia Act (TMG) and be punishable by a fine of up to fifty thousand Euro (Section 11 (3) TMG).
The fulfilment of all conditions of a complete legal notice is easy to achieve and is of great importance for the protection of consumers and to strengthen trust in e-commerce when sending commercial emails. For the sender of commercial emails, a correct and complete legal notice is therefore an important prerequisite for a good reputation and prevents the imposition of severe fines.