Liability for anti-competitive e-mail advertising in outsourcing

In the view of the Higher Regional Court of Cologne (OLG Köln) (judgment of 08.10.2010 – 6 U 69/10), a company may be liable under certain circumstances for anti-competitive advertising measures independently initiated by an affiliated company if these are undertaken in its commercial interest.

The facts decided in this case concerned unlawful e-mail advertising, carried out without the express consent of the recipient, which was arranged by an external service provider in the interest and for the benefit of the defendant company and, from the perspective of the recipient, constituted unreasonable harassment.

The court's decision

The court takes the view that perpetrator liability (not: disturbance liability) is not only based on the omission of reasonable review measures within the framework of competition law duty of care, but also pursuant to § 8 Abs. 2 UWG on the grounds that "division of labour" was employed here. The defendant cannot exonerate itself by engaging an external company in its interest to carry out advertising measures (e-mail advertising) if the advertising partner is so integrated into the operational organisation that enforceable influence over the partner's activity exists. In the case of outsourcing of advertising services, the advertiser should not be able to hide behind dependent third parties, but must itself bear the risk it controls within the framework of the extended operational organisation. The term "extended operational organisation" shall include, inter alia, self-employed commercial agents, advertising agencies and members of sales organisations.