E-mail from referral function is anti-competitive spam!

An increasing number of online shops and internet portals provide a "Recommend to a Friend button" on their website, which allows users to recommend a particular website or product to their contacts. The Federal Court of Justice (BGH) had to decide whether the recommendation email generated from the referral function and sent to a third party who has not consented to receiving email advertising – like unsolicited email advertising from the company itself – is to be assessed as unfair spam email.

In the present case, a lawyer received several recommendation emails which were sent to him by third parties via the website of the defendant company and which pointed to its online presence. From the perspective of the lawyer's inbox, it appeared as though the email had been sent by the company itself.

The lawyer sent a cease-and-desist letter to the advertising company regarding unfair advertising and demanded cessation. The company took the legal view that it was neither the perpetrator nor liable for the advertising emails, since these had been sent by third parties in the course of using the referral function.

The lower courts shared this view and rejected both the lawsuit and the lawyer's appeal.

Court Decision

By way of judgment of 12.09.2013, Az. I ZR 208/12 the Federal Court of Justice (BGH) overturned the decisions of the lower courts and ordered the company to cease sending the recommendation emails. The lawyer was entitled to assert his claim for cessation due to an unlawful interference with his established and operated business.

For the classification of a recommendation email as advertising, it is not decisive that the sending of the email is based on the will of a third party. What matters alone is what the advertiser intends to achieve by providing a "Recommend to a Friend button". Since, by experience, such a function serves the purpose of drawing the attention of third parties to the advertiser and the services offered by it, these emails are to be classified as advertising.

Without prior express consent from the recipient, such advertising emails then constitute an unreasonable harassment that is anti-competitive. This is not to be assessed any differently than unsolicited advertising email from the company itself.

Conclusion

With this decision, the Federal Court of Justice (BGH) has effectively prohibited the use of referral functions on websites, since it will hardly be possible to obtain the necessary authorisation from email recipients before sending all recommendation emails. Therefore, users of such functions are advised to remove them from their websites accordingly. Anyone who continues to provide a referral function must accept the risk of being sued for cessation due to the unauthorised sending of advertising.