Scope of advertising consent in a sweepstakes

The Regional Court (LG) Frankfurt (Oder) dealt with the question of how explicit advertising consent is to be obtained. This also concerned what requirements apply to the discernibility of the circumstances of such consent.

The German Competition Centre (Wettbewerbszentrale) took action against a retailer. The retailer advertised its products on the internet and held a sweepstakes. In order to participate in the draw, the interested party had to enter personal information in a form, including their email address. Below the form fields to be filled in were two boxes in which the interested party could place checkmarks. The top box referred to a "data confirmation" and participation in the sweepstakes, the lower box referred to the subscription to a newsletter.

Further down in the form was the notice "By providing my email address, I agree that [the business operator] will send me regular information by email". The customer was thus to give consent to the sending of such "information" solely by providing their email address in the context of participating in the sweepstakes.

The German Competition Centre (Wettbewerbszentrale) saw a violation of competition law in this and issued an unsuccessful warning to the retailer. It subsequently filed a lawsuit with the Regional Court (LG) Frankfurt (Oder).

Decision of the Regional Court on advertising consent

The Regional Court (LG) Frankfurt (Oder) (judgment of 18.06.2020, case no. 31 O 59/19 – NOT a free source) assessed the circumstances surrounding the alleged advertising consent as contrary to competition law. The court dealt in particular with the manner in which customer consent to the "regular sending of information by email" was to be obtained.Although the customers had the option to uncheck the box for receiving a

newsletterNewsletters to click, or not. The problem: However, the checkbox did not at the same time relate to the "information", which the advertiser also intended to send by e-mail as evidenced by its online presence.

The text regarding consent to the "information" was spatially clearly separated and was not provided with a checkbox for advertising consent. The required consent was only to be obtained through participation in the prize draw by providing the e-mail address. However, the court put a stop to this practice.

Express advertising consent required

In this case, the issue was not the manner in which the advertising entrepreneur obtained consent with regard to sending the newsletter. Rather, the problem was the manner in which consent to sending "information" by e-mail was to be obtained.

In principle, advertising consent must be express. In contrast, implied consent is not sufficient. The obtaining of such insufficient consent carries the risk of misleading, as the judges stated. Express consent can be obtained, for example, by clicking a checkbox. Such a solution also satisfies the requirements of the UWG and the DSGVO.

Conclusion

When obtaining an (explicit) advertising consent, the consumer must be able to clearly and distinctly identify what type of advertising material is the subject of the consent.