28. Mar 17

OLG Hamm: Penalty for unlawful advertising via email

Advertising is subject to restrictions, and anyone who oversteps these may be faced with severe penalties. This also applies to unlawful advertising via email, as demonstrated by a ruling of the Oberlandesgericht (OLG) Hamm [Higher Regional Court of Hamm].

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: Email is as fast as it gets. The advertising is targeted at and directly reaches the recipient. While a lot of advertisers may find this convenient, many of the recipients are bothered by these kinds of advertising emails. What’s more, they are not always permissible. Anyone who nevertheless simply sends out these kinds of emails can render themselves liable to prosecution, as shown by a final judgment of the Oberlandesgericht Hamm from November 25, 2016 (Az. 9 U 66/15).

In the instant case, a workshop had repeatedly received email advertising from a firm marketing advertising media, in particular foil stickers. The workshop received this kind of advertising email against its will for the first time in 2011. The workshop issued the sender with a warning. The latter issued a cease-and-desist declaration with a penalty clause and committed in the event of the behaviour in question being repeated to paying a contractual penalty in the amount of 3000 euros. About three years later, this conduct was repeated; the workshop once again received this kind of email featuring advertising without its consent. It subsequently demanded that the defendant pay the agreed contractual penalty and issue a new cease-and-desist declaration.

The defendant resisted these measures, claiming that it had not sent the email that was the subject of the dispute. However, its address was listed in the email’s sender field and it was therefore unsuccessful before the OLG Hamm.

The OLG Hamm adopted a clear position after an expert opinion was furnished. According to this, there was no doubt that the email was sent from within the defendant’s firm. The expert was able to track the progress of the email and rule out the possibility that there had been any manipulations or that the email had been sent by a third party without the defendant’ knowledge. The OLG Hamm also ruled that the contractual penalty was not an unreasonable amount.

There is often a fine line in advertising. Violations of competition law can give rise to formal written warnings, damages claims and injunction suits. Lawyers who are competent in the field of competition law can assist companies in fending off or enforcing claims resulting from violations of competition law.

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