Violation of personality rights through auto-reply email?

Many companies use the auto-reply function, i.e. automated receipt confirmations by email. Whether advertising additions may be included in auto-reply messages when the recipient of the message has objected to the receipt of advertising had to be decided by the Federal Court of Justice.

The subject matter of the proceedings is a standard receipt confirmation from an insurance company via auto-reply email. This informed about the fact that the sender's message had been received. At the end of the message, reference was made to a severe weather service via SMS and an app of the insurance company.

The plaintiff had received such an email after he had sent an email to the defendant insurance company. He in turn complained by email about the advertising contained in the message and received again a receipt confirmation with identical advertising.

The plaintiff then claimed against the insurance company for an injunction.

The Local Court (AG) Stuttgart-Bad Cannstatt as the court of first instance (we reported) was of the view that the sending of emails for business purposes without prior request regularly constituted an infringement of the general personality right of the person concerned.

In the second instance, the Regional Court (LG) Stuttgart then decided (we reported) that an auto-reply email with advertising does not violate the recipient's general personality right. The necessary materiality of the infringement was lacking.

The court's decision on auto-reply emails with advertising additions

The Federal Court of Justice (BGH) confirmed the view of the Local Court (AG) Stuttgart-Bad Cannstatt and decided by judgment of 15.12.2015 – Az. VI ZR 134/15 that email letters with advertising content sent against the declared will of a consumer constitute a violation of the general personality right.

The decision was justified on the grounds that the transmission of the confirmation email with advertising addition took place against the previously declared express will of the plaintiff.

Conclusion

Whether the Federal Court of Justice (BGH) already considers the first sending of a confirmation email with advertising addition to be a breach of law remains unclear until the publication of the judgment. At least when the recipient of the message has expressly declared a contrary will, advertising additions in auto-reply emails are impermissible and must therefore be discontinued.