Are Auto-Reply Emails Spam?

The unsolicited sending of email advertising is deemed spam and therefore unfair competition, which advertisers must refrain from. Furthermore, the sending of advertising emails regularly also constitutes an interference with the general right to personality. The Regional Court (LG) Stuttgart recently had to decide, in second instance, whether an auto-reply email, which contains advertising at the end of the message, should likewise be classified as spam with corresponding legal consequences.

A customer of an insurance company first terminated his insurance contract by postal letter. When he received no response to this letter, the consumer sent his insurance company an email terminating the contract and requested confirmation of his termination by email. The insurance company sent the policyholder an auto-reply response with the heading:

"Automatic reply to your email of 10.12.2013 9:27:34 Policy number xy // Termination"

In addition to confirmation of receipt of the consumer's email, the following advertising appeared after the email:

"By the way: Severe weather warnings by SMS free of charge to your mobile phone. An exclusive service only for (...)Information and registration at (...)"

New for iPhone users: The App (...) incl. push notifications for (...) and many other useful features around "itundes.apple.com/(...)"

"***This email is automatically generated by the system. Please do not reply to it.***"

The policyholder considered this advertising, which he had not authorised, to be unfair and a violation of his personality rights. He sent a reminder to the insurance company and demanded that it issue a cease-and-desist declaration with a penalty clause. The insurance company refused and allowed the matter to go to court.

Court Decision

The Regional Court (LG) Stuttgart decided by judgment of 04.02.2015 (Az. 4 S 165/14) that an auto-reply email with advertising does not violate the recipient's general right to personality. For such a violation to occur, the necessary materiality of the interference would be lacking.

Although unsolicited sending of advertising emails regularly also constitutes an interference with the general right to personality.

However, in the present case, it must be taken into account that the disputed email was an automatic receipt confirmation from the defendant, which was sent immediately in response to the plaintiff's email. The materiality required under the general right to personality is therefore lacking.

The Regional Court (LG) further rejected the classification of an auto-reply email as spam and thus rejected the finding of unfair competition. The circumstances under which the case law presumes a non-negligible nuisance from a spam email were not present in the auto-reply email, since no special sorting of the email was necessary. This is because the insurance company's email would have had to be opened by the customer regardless of the advertising addition at the end.

Apart from this, it was already apparent to the plaintiff from the subject line, namely "automatic reply to your email", and from the time stamp that the email was a receipt confirmation. Sorting out was not necessary in such a case because such emails are usually stored as proof of receipt of the email.

Conclusion

The sending of an automatic reply, in which an advertising sentence is added under the auto-reply text, is not unfair competition and does not constitute a violation of the general right to personality, since the customer has actually sent a request to the sender. The response from the addressee therefore does not impose any additional burden on the recipient.