Voucher by e-mail – impermissible advertising?

The Regional Court (LG) Frankfurt a.M. has decided that sending a voucher by e-mail constitutes unreasonable harassment within the meaning of competition law, if no consent from the recipient is present and within the context of a customer relationship not "own similar goods or services" are advertised, but rather the entire product range.

A consumer purchased a "gaming chair" from an online shop. No express consent to receive advertising by e-mail was given.

Some time later, the retailer sent the customer an e-mail with the following content:

"(…) some time has passed since your last purchase. We would be delighted to welcome you to our shop again. For this reason, we are giving you a 5-euro voucher, which you can redeem in our shop according to your preferences. (…) Best selection: Approximately 150,000 items are waiting for you – all in just one shop! (…)"

A competition association took issue with the fact that the advertising e-mail was not based on consent from the customer. As a result, the association issued a warning to the retailer and demanded the submission of a declaration of undertaking subject to penalty. The online retailer did not comply, so the case was submitted to the LG Frankfurt a.M. for decision.

The decision of the LG Frankfurt a.M.

The LG Frankfurt a.M. established withjudgment of 22.03.2018 – Az. 2-03 O 372/17that the sending of the voucher by e-mail in the concrete case constitutes unreasonable harassment within the meaning of competition law. The retailers' objection that the exception provision of § 7 Abs. 3 UWG was satisfied was rejected by the court.

Accordingly, direct marketing by e-mail must, among other prerequisites, be directed at "own similar goods or services". In this respect, the advertising must be made with regard to the goods or services already purchased, the advertised goods or services must correspond to the same recognisable or at least typical purpose of use or need of the customer, so the court held. In such case, it could be assumed that the average consumer would perceive the advertising not as harassment, but as useful information.

This was not the case according to the court's assessment. In the present case, the customer had ordered a "gaming chair". In the e-mail, however, the entire product range of the retailer was advertised ("Approximately 150,000 items are waiting for you"). The advertised content was thus comprehensive and went beyond the product purchased by the e-mail recipient or even similar product categories and accessories.

Conclusion

If there is no express consent to the dispatch of e-mail advertising, the advertising may nevertheless be permissible if, where other criteria are satisfied, it is used within the framework of a customer relationship for "own similar goods or services" with regard to the product ordered by the customer. This also applies to the dispatch of a voucher by e-mail. However, a reference to a product range of the company beyond this without the consent of the recipient is impermissible.