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.

Key Facts

Legal issues relating to e-mail consents appear cyclically before the courts.
Berlin Court of Appeal ruled that only 1 newsletter per week may be sent.
The Munich Local Court ruled that consent can expire after four years.
Advertisers must check consent before new advertising.
Newsletter was reactivated for ex-members of a golf club, which led to a warning.
Consent must be effective and complete; it should be reviewed regularly.
Newsletter mailings must be linked to the membership and must be terminated in case of doubt.

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.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.

Tags: Court of Appeal E‑mail Judgments Kündigung Mail Warning