Advertising in Auto-Reply E-Mail Violation of Right of Personality?

Many companies use automated receipt confirmations (auto-reply) in response to customer enquiries by e-mail in order to advertise their goods and services. The Local Court (AG) Stuttgart had to decide whether these reply e-mails constitute unsolicited advertising.

A consumer declared the termination of an insurance contract concluded on the online platform www.versicherungen.de. He contacted the portal which managed his contract by e-mail and requested that the portal confirm the notice of termination by e-mail. The portal confirmed receipt of the e-mail under the subject line "Automatic Reply to Your E-Mail from 10.12.2013 9:27:34: Insurance Number …. // Termination" and pointed out to him under "Incidentally" various services offered by the company.

The consumer had not consented to receiving advertising e-mails and demanded that the insurance portal cease sending corresponding advertising e-mails. The transmission to his privately used e-mail account constituted an unreasonable interference with his general right of personality.

The Internet portal disagreed with this assessment, arguing that the consumer had contacted the company by e-mail. The portal was therefore entitled to use this means of communication to confirm receipt of the e-mail.

Furthermore, the portal argued that the information contained in the footer of the e-mails did not constitute advertising, as the footer contained no statements about insurance products. The acknowledgement of the footer entailed no time-related or otherwise perceptible effort for the plaintiff.

Decision of the Court

By judgment of 25.04.2014 – Az. 10 C 225/14 – the Local Court (AG) Stuttgart decided that the sending of e-mails for business purposes without prior request by the e-mail recipient regularly constitutes an interference with the general right of personality of the person affected.

Such contacts regularly impair the daily life of the e-mail recipient, since the person affected must deal with the communications. This creates additional work for the consumer.

Advertising e-mails in the form of an auto-reply e-mail also fall under this prohibition, even if advertising is only contained in the footer and receipt of an e-mail is confirmed beforehand.

Conclusion

Advertising e-mails are only permitted if the recipient has previously expressly consented to their transmission. This also applies to auto-reply e-mails where initial contact has been made by the consumer. Advertising e-mails, as spam, violate the general right of personality of the consumer and are furthermore also unlawful in competition law.