Advertising in no-reply confirmation e-mails inadmissible

10 März 2016

On 15 December 2015 the German Federal Supreme Court (BundesgerichtshofBGH) decided that advertising e-mails sent out without the clear will of a consumer violate the general right of personality, which according to Section 1004 para. 1 sent. 2 in connection with Section 823 para. 1 German Civil Code (Bürgerliches Gesetzbuch, BGB) give rise to a cease-and-desist claim of the concerned consumer (docket no. VI ZR 134/15).

In the underlying case, the Plaintiff had asked the Defendant via e-mail for a confirmation of a termination notice. In reply to this, the Defendant had sent him an automatically generated e-mail which confirmed receipt of the above-mentioned message but also contained advertising references to a free weather alert via SMS as well as to a weather app. The Plaintiff had then sent an e-mail to the Defendant in which it had criticized the advertising content of the automatically generated e-mail, to which the Plaintiff had not given its consent, and the Plaintiff had later sent another e-mail to the Defendant. In reply to these e-mails, the Plaintiff had again received automatically generated e-mails with the above-described advertising.

The entire judgment can be downloaded here (in German language).