Legal Requirements for the Product Recommendation Function

Whether email is to be regarded as direct marketing depends solely on whether a specific addressee is contacted via his or her electronic mailbox (mailbox). Email is direct marketing and, as such, constitutes an unreasonable harassment of the recipient.

Operators of internet offerings of all kinds have long made use of the marketing tool of product recommendation. In this process, a visitor/customer of their own pages is offered the opportunity to send a message with an article or product recommendation to a specific person by entering the name and email address. Now, as practised by the defendant in the present case, it is obvious to add (additional) advertising messages to this recommendation tip.

The plaintiff objects to this by arguing that this procedure should not be assessed any differently than the unsolicited sending of spam emails (advertising emails) by the defendant itself. Furthermore, spam filters would be bypassed since the sender's address of the person requesting the email and not that of the commercial operator of the internet pages is transmitted. The defendant defends itself essentially by arguing that its procedure does not constitute direct marketing because the sending of the email was not instigated by it.

The Court's Decision

The Higher Regional Court (OLG) Nürnberg (judgment of 25.10.2005 – 3 U 1084/05) follows – unlike the lower court (Regional Court (LG) Nürnberg-Fürth) – largely the plaintiff's view. The addition of advertising directed at the sale of goods in the sending process on the defendant's server constitutes harassment of the recipient, since the recipient has not given any consent in this regard. The sending of the product recommendation with its specific content is furthermore not based on the decision of the sender, as the sender had no knowledge of the later content – including the advertising.

This procedure also constitutes "direct marketing", as the additionally transmitted message aims at the sale of goods and is directed to the personal address of a very specific addressee. This addressee must consequently be targeted via his or her electronic mailbox, which is the case here. The fact that an "intermediary" was used to send the advertising is ultimately irrelevant.

Conclusion

The background to the regulation of § 7 UWG (Harassing Advertising) and the case law based on it is the legislator's objective to keep email boxes free of advertising in principle.

However, the judgment must not be misunderstood: it definitely does not mean the end of product recommendations. Rather, it merely prohibits adding advertising messages to the sent email in which consent has not been given (opt-in/opt-out).

It must at the same time be warned against attempting to circumvent matters in such a way as to disclose the advertising to the third party (recommender) already upon the instigation of the product recommendation. In case of doubt, case law will assume that this notice was too unclear or incomprehensible or was accepted without freedom due to its coercive effect. This is of course a matter of the individual case and is not amenable to a generalised consideration.