Consent to telephone marketing through double 'opt-in' procedure?

Marketing calls are only permissible insofar as the called prospective customer has previously expressly consented to such a call. Since this is relatively difficult to implement in practice without abandoning telephone marketing entirely, the AOK has now attempted to persuade prospective customers to give their consent through a prize draw offered by it. The judges in Karlsruhe had to decide whether the double 'opt-in' procedure used by the AOK complies with the provisions of competition law.

The AOK for Saxony and Thuringia undertook in 2003 vis-à-vis the Consumer Centre Saxony to refrain from calling consumers for advertising purposes without their consent. In addition, it undertook to pay a contractual penalty of EUR 5,000 for each breach.

Following the signature of the injunction subject to a penalty clause, two consumers received marketing calls from a call centre which had been commissioned by the AOK. The Consumer Centre then sued the AOK for payment of EUR 10,000 under the cessation agreement concluded with it.

The AOK defended itself against the allegations and claimed to have obtained the consent of those called by means of the so-called 'double-opt-in procedure'. The consumers had participated in an online prize draw offered by the AOK, had entered their telephone number there and had declared their consent to telephone marketing by marking a field. They then received an e-mail with notice of participation in the prize draw at the specified e-mail address, which they confirmed by clicking on a link contained therein.

Court decision
The Federal Court of Justice (BGH) decided by means ofUrteil vom 10. 02.2011 – I ZR 164/09 (Telefonaktion II), that the double 'opt-in' procedure used by the AOK to attract customers was contrary to competition law. The BGH announced this in its press release 29/11.

The 'double-opt-in procedure' carried out electronically by the AOK is unsuitable for demonstrating consumer consent to marketing calls. Although, where the electronic confirmation requested in the process is presented, it can be assumed that the participation application for the online prize draw containing the consent to marketing calls actually comes from the specified e-mail address, it is not thereby ensured that the stated telephone number actually belongs to the sender of the confirmation e-mail. However, the law strictly requires that the person actually called has expressly declared their consent before the marketing call.

Conclusion

The Karlsruhe judges remained true to their line of implementing the statutory prohibition on telephone marketing without prior consent. Marketing calls should only be permitted if the called party itself has previously expressly consented to such a call. If there is any doubt about the identity of the person called with the person who should have consented, such doubt shall be to the detriment of the advertiser, who may then be given a cease-and-desist notice subject to payment of costs and be required to cease the activity.