Consent for sending advertising via T&Cs?

The Higher Regional Court Hamm (OLG Hamm) had to decide whether a company could arrange for consent to the sending of advertising via fax or email in its general terms and conditions, or whether such a T&C clause would be ineffective and thus contrary to competition law.

The Competition Centre (Wettbewerbszentrale) issued a warning to a telecommunications company and sued it for cessation, because the latter had provided for a pre-formulated consent declaration in its T&Cs for the sending of advertising by post, e-mail, fax as well as contact by telephone. The following clause was agreed with customers by means of pre-formulated contract terms:

"I hereby revocably consent to the provider using my contact details (postal address, e-mail address as well as fax and telephone number) for advice and advertising exclusively for its own purposes and sending me current product information or the newsletter in this manner. I can withdraw my consent at any time."

The telecommunications company did not provide a cessation agreement, so the Competition Centre proceeded by legal action.

Decision of the court
The Higher Regional Court Hamm (OLG Hamm) decided in its Urteil vom 17.02.2011 – Az. I-4 U 174/10that consent to the sending of advertising cannot be presumed by means of general terms and conditions.

The use of customer data for advertising purposes by post was ineffective, as the T&C clause was made together with other declarations and the pre-formulated consent was not presented in the highlighted form prescribed by the Federal Data Protection Act (Bundesdatenschutzgesetz). In the case of advertising by fax, e-mail and telephone, express consent of the consumer or entrepreneur in the form of an "opt-in" declaration is even required.

Conclusion

With the decision of the Higher Regional Court Hamm (OLG Hamm), the advertising materials sent by the telecommunications company without consent via e-mail, fax and by post are to be assessed as spam, which in the context of competitive relationships constitutes unfair competition, and in relation to consumers or other enterprises constitutes violations of the right to personality or of the established and exercised business operation. All such violations can, like the use of ineffective T&Cs itself, be subject to cease-and-desist letters for a fee.