Is recommendation advertising spam unfair competition?

In the appellate proceedings, the Regional Court (LG) Berlin had to decide whether an invitation e-mail for an online shopping portal sent by friends, lacking the consent of the email recipient, constitutes unfair competitive spam messages that must be attributed to the portal operator within the scope of secondary liability, or whether recommendation advertising by friends requires no prior permission.

The operator of an online shopping platform, where one could only shop as a registered member, advertised her internet platform in the form of recommendation advertising. To be registered as a member, one first had to be invited by another member. The members were provided with a pre-formulated invitation on the homepage of the shop operator, which was standardly used and sent by the members.

The consumer who later brought the action received an invitation e-mail from an acquaintance. It contained a text pre-formulated by the shop operator that informed about her offer. Following this, the consumer asked the operator not to send any further promotional emails to him. However, the portal operator nevertheless sent the consumer another e-mail with a notice that the received invitation was only valid for a short time longer.

Thereupon, the consumer sent an out-of-court warning notice to the operator and demanded a cease-and-desist declaration with penalty for the transmission of spam emails. The operator merely issued a cease-and-desist declaration for the second reminder e-mail instigated by herself. The consumer is of the opinion that the e-mail sent unsolicited by the alleged acquaintance is already impermissible and filed a first-instance action, which he was able to decide in his favour, and against which the operator of the internet shop filed an appeal.

Court's decision
The appeal before the Regional Court (LG) Berlinvom 18.09.2009 – Az. 15 S 8/09confirmed the decision of the lower court and declared the portal operators to be (co-)disruptors.

According to the appellate court's view, invitation e-mails for online shopping portals should be considered advertising regardless of whether they are declared as personal messages. Since the invitation is used to establish a direct promotional first contact, this recommendation marketing is unlawful without the prior express consent of the addressee.

It was not the case here that an acquaintance of the consumer, without the knowledge of the internet shop operator, had sent such a recommendation e-mail for the online shop. Rather, the shop operator had incentivised members through premiums and prize opportunities to participate and provide new addresses.

The invitation to membership was also not the first stage of a so-called "double opt-in procedure", since the website did not merely provide the passive option for interested parties to register on their own initiative. The e-mail in question was the first contact without any action on the part of the recipient. The operator could therefore not assume the e-mail recipient's consent.

Conclusion

Recommendation advertising by its customers, instigated by the portal operator and rewarded through premiums, is unlawful, in particular insofar as the operator's own services and/or goods are advertised in that very message. In such case, this email is to be classified as spam. The threshold to unlawfulness might not yet be exceeded in individual cases, however, insofar as such advertising of the internet shop and a reward of the inviter by the shop operator are omitted.