Scope of the obligation to cease and desist regarding e-mail advertising

Whoever sends unsolicited e-mail advertising is obliged to cease and desist such conduct vis-à-vis the recipient and also vis-à-vis competitors due to the harassment associated therewith. The Higher Regional Court (OLG) Celle had to decide how far this obligation to cease and desist extends. Moreover, the court took the opportunity to clarify the lawfulness of the double opt-in procedure. This was denied in 2012 by the Higher Regional Court (OLG) Munich in a much-noticed decision.

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The legal dispute decided by the Higher Regional Court (OLG) Celle primarily concerned the sending of e-mail advertising to which the recipient had not consented. In particular, the question was disputed whether the obligation of the sender to cease and desist from sending such e-mails was limited only to the concrete e-mail address of the recipient in question or also affected further (unknown) addresses. The sender issued a pre-litigation declaration to cease and desist, in which he undertook not to send unsolicited advertising to a specific address. Despite the recipient's hint that this was insufficient and that the obligation must also extend to further, possibly unknown addresses, the sender did not alter this declaration. As a consequence, the recipient of the advertising commenced proceedings with the aim of obligating the sender to cease and desist to this extent.

The court's decision

In its judgment of 15.05.2014 (Az. 13 U 15/14), the Higher Regional Court (OLG) Celle established that the right to demand cessation generally encompasses not only the concrete infringing conduct but also essentially similar infringing conduct in kind. The right to demand cessation could, it is true, be restricted by the principle of proportionality. However, a right to demand cessation directed at e-mail advertising to the recipient in general does not impose a disproportionate burden on the sender and does not impose an unreasonable risk upon him. In the case at hand, the sender must demonstrate that the recipient's consent exists, which he can always do without difficulty if he has obtained it. Then, however, it is immaterial to which e-mail address this consent relates.

Although not decisive in this proceeding, the court gave the impression that it regards the so-called double opt-in procedure as sufficient to obtain such consent and not to regard the opt-in e-mail associated therewith, contrary to the OLG München as impermissible advertising.

Conclusion

The decision is logically consistent because the sender of e-mail advertising who has consent is no worse off with a broad obligation to cease and desist than with a narrow one limited to a specific e-mail address. If the sender does everything correctly, he has consent from every recipient – regardless of which address is used – over consent. The problem is, however, of a practical nature: many senders of e-mail advertising do in fact have reliable declarations of consent from recipients. For these, the judgment presents an unforeseeable risk, particularly as the obligation may also affect unknown addresses. The requirement of consent should therefore gain in effectiveness for suppressing unwanted e-mail advertising against this background.

Entirely reasonable is the determination regarding the permissibility of the double opt-in procedure. Nor should it be made too difficult for advertisers, which is why the judgment from Munich represents a – hopefully unique – erroneous decision.