Spam can be expensive

Even among merchants, unwanted sending of email advertising can be very troublesome. In the present case, an automotive workshop was able to successfully defend itself against the unwanted dispatch of spam emails.

After the operator of an automotive workshop received unwanted email advertising for film decals, she had the responsible sender initially given notice of breach of contract. The latter issued a cease-and-desist declaration subject to a penalty clause and undertook to pay a contractual penalty of 3,000 euros in the event of repetition. Nevertheless, she did not refrain from continuing to send spam to the workshop operator, among others. However, she refused to pay the demanded contractual penalty and disputed the further sending of spam emails. The workshop operator was now able to successfully enforce the contractual penalty through court proceedings.

Court decision: €3,000 contractual penalty for spam

By judgment of 25.11.2016 – 9 U 66/15 (Press release of 17.01.2017) the Higher Regional Court (OLG Hamm) confirmed the claim for payment of the contractual penalty.

After an expert opinion was obtained regarding the transmission of the further email, the Higher Regional Court (OLG Hamm) confirmed the first-instance decision of the Regional Court (LG Münster).

The contractual penalty was also not to be reduced. The advertising sender had acted as a merchant in the course of her commercial business. A significant disproportion of the contractual penalty to the gravity of the breach could not be established.

Conclusion

Unwanted spam emails are not only troublesome; they can also be expensive for the advertiser. Entrepreneurs can also assert cease-and-desist claims. If a cease-and-desist declaration is issued, contractual penalties of 3,000 euros are not unreasonable.