AG Munich on the “expiry” of consent to send e-mails

As a lawyer, one is always surprised at how sometimes certain legal topics cyclically resurface in courts. At least this is how it feels when users give their consent to receive e-mails or newsletters. Just a week ago, I reported on the decision of the Court of Appeal in Berlin, which ruled that in the case of consent to send a weekly newsletter, only exactly 1! newsletter may be sent per week.

Now I became aware of a decision of the district court of Munich from 14.02.2023, which has just decided:

1. according to the circumstances of the individual case, the expiry of an originally granted consent to the sending of e-mail advertising can be assumed. This is in any case the case if an account to which a newsletter was subscribed has not been used for a period of four years and no further advertising has been sent in the knowledge of this.

2. in such a case, the advertiser must inquire from the recipient whether the original consent continues to exist before sending the e-mail advertisement again.

>The present peculiarity is that it is a newsletter to which a member has subscribed in a golf club. However, at the time the newsletter was sent, the recipient had not been a member for some time. Apparently, however, the e-mail address was still stored and in the course of the termination of a partnership with the DGV (Deutscher Golf Verbund) the newsletter was reactivated. The new newsletter then led to a warning by the ex-member and the judgment presented here.

Conclusion:

The two rulings impressively show that it is not enough to somehow set up consents to send e-mails, but that these must also be effective and complete and that the e-mailing must then be based on the consent. Also, whether consent still exists at all (factually or legally) should always be checked. In the present case, a similar problem actually arises as in the Kammergericht (even if the court did not problematize it in such a way). This is because if a newsletter has been ordered as part of a club membership, then unless there is explicit consent to the contrary, that consent is limited to the needs of the club. If one is no longer a member (for whatever reason), the newsletter order must ALSO be terminated – regardless of whether the member does this himself. I bet that hardly any club, company (e.g. gym etc.) thinks about this very fact, simply because the systems for cancellation and newsletter sending are not technically coupled.