In competitions, especially on the internet, participants' data is often (also) collected in order to pass this data on to third-party companies (sponsors or cooperation partners). This data of the consenting person is then "bought" by the sponsors or cooperation partners in order to send advertising emails to these persons.
Now the question arises: Can a third-party third party company send an advertising email to a purchased address?
Answer: Yes, but...! Among other things, only if the participant has been informed about this and has given his/her consent in accordance with the above-mentioned requirements. Third-party companies (sponsors or cooperation partners) can then also send an advertising email to this person.
How can this be implemented in a legally effective manner?
This is not so easy. The case law on this is is rare, and decisions are often based on individual cases. Nevertheless, there are a few requirements that you should be aware of.
The case before the BGH
[This case contains two sets of issues (consent clause for advertising emails and use of cookies). We will only deal with the first issue here].
In this case of the BGH from 28.05.2020, (Ref. I ZR 7/16), the competition participant had to actively click on a checkbox to give their consent to receive advertising emails. So far so good. The text of the consent notice read:
"I agree that some sponsors and cooperation cooperation partners inform me by post or telephone or by e-mail/SMS about offers from their respective business areas. I can here myself, otherwise the selection will be made by the organizer. I can revoke my consent at any time. Further information here."
Now one wonders why this content of the clause can be problematic, because after all, the participant decides voluntarily whether to give this consent (actively clicking on the checkbox).
However, consent is not quite so voluntary after all because participation in the competition was only possible if the check mark for this this information text was ticked.
In addition: If you followed the link to the sponsors and partners, a list of 57 companies with their address and the business area to be and the business area to be advertised as well as the type of communication type of communication used for advertising. For each company, you could click the "Unsubscribe" button button for each company. This meant that if you did not want to receive any advertising from the advertising, you had to "unsubscribe" the company from the list. In total you could deselect 30 sponsors/partners.
Judgment of the BGH on this case
The BGH ruled that the objectionable declaration of consent was to be regarded as general terms and conditions and that this constituted an inappropriate of the consumer. The requirements of Section 7 Para. 2 No. 2 UWG were were not fulfilled.
The BGH writes in this regard:
"Consent is given "informed consent" is given when the consumer knows that his his declaration constitutes consent and what it relates to. The consent is given "for the specific case" if it is clear which products or services of which companies it specifically covers.
This is not the case in the dispute, because (...) the design of the declaration of consent challenged by the plaintiff is designed to confront the consumer with an elaborate procedure for deselecting partner of partner companies included in the list in order to induce the consumer to refrain from exercising this choice and instead to allow the defendant to defendant the choice of advertising partners. If the consumer is unaware of the knowledge of the content of the list and without exercising the right of choice, the consumer does not know which products or services of which companies are covered by the consent, there is no consent for the specific case."
This makes it clear that only the consumer should have which advertising partners were allowed to write to them. But even if the consumer consumer had made this selection himself, the consent was ineffective for other consent was given invalidly for other reasons:
The procedure is too time-consuming and is disproportionate disproportionate to the desired participation in the competition. This effort leads the BGH confirmed the Court of Appeal - that the consumer will not make the consumer will not make the selection themselves and leave the selection to the leave the choice to the organizer of the competition. Consent therefore does not fail only because the consumer did not make the selection, but because the effort the consumer is already driven by the effort to not want to make the selection himself. to make the selection themselves.
Conclusion:
An interesting decision that once again confirms that the requirements for an effective declaration of consent are very high. A number of things must be taken into account and the case law on this should always be should always be kept in mind.
