Harassment through 'confidential' direct mail advertising?

Advertising letters whose external design suggests that they are an important official document are misleading and constitute harassment of the recipient. Therefore, according to the view of the Kammergericht Berlin (KG Berlin), such direct mail advertising must be discontinued.

A Dutch company that distributes dietary supplements and medicinal products sent an advertising brochure in which standard medicinal products were criticised and its own dietary supplements were promoted in an envelope to recipients in Berlin. On the front of the envelope was a 'delivery notice' with statements such as: 'Confidential contents', 'To be opened by the recipient only' and 'Urgent matter!'.

An advertising association considered this advertising mail to be unlawful because it deceived the recipient as to its advertising nature.

Decision of the court – harassment through direct mail advertising

The preliminary injunction issued in the first instance was confirmed by the Kammergericht Berlin (KG Berlin) by judgment of 19.06.2015 – 5 U 7/14 .

Direct mail advertising is fundamentally permissible. The harassment which lies in the fact that the advertising letter is not already marked as advertising on the envelope is also not yet to be characterised as unreasonable. This applies in any event if the advertising nature is immediately and unmistakably recognisable after opening the letter.

In this case, the unreasonableness follows from the statements 'delivery notice … confidential contents', 'To be opened by the recipient only!' and 'Urgent matter!', since these are simply false. Through these statements, the reasonable average recipient of the advertising mail is led to form an artificial sense of urgency that does not in fact exist and an impression of a special importance of the content of the mail that does not actually exist. Furthermore, the advertising mail as such is hardly recognisable. The advertiser could without difficulty be expected to refrain from including such harassing and inaccurate statements in its advertising.

Under these circumstances, it is irrelevant whether the advertising nature is immediately and unmistakably recognisable after opening the letter.

Conclusion

Direct mail advertising as such is fundamentally permissible. However, it constitutes unreasonable harassment if the advertising nature is obscured and if the statements on the envelope create a false impression of special urgency and importance of the content.