Yesterday I stumbled upon an interesting ruling by the Supreme Court in Vienna. For Austria, the latter has finally decided that an e-mail that is sorted into the spam folder of the recipient is deemed to have been delivered and can therefore act against the recipient.

“In general, it is sufficient for a declaration of intent to have entered the sphere of power of the addressee, even if the addressee has not personally received it; it is sufficient that the addressee was able to take note of the declaration.’

Now, of course, the judgment is not directly applicable to Germany, except in the relationship between an Austrian and a German, for example by the ROM I Regulation or the ROME II Regulation, Austrian law would apply. However, the legal situation in Germany can hardly be assessed differently. If in Germany, whether in business or as a consumer, express or implied, one has expressed agreement with the sending or contacting by e-mail, one must generally allow the delivery to apply against oneself, even if a so-called false-positive sorts the e-mail into the spam folder by mistake.

German courts have already dealt with the issue, and the Landgericht Bonn ruled back in 2014 that a spam folder, with a business-used email account, must be checked daily. However, it is also true that the sender would of course have to prove the delivery (and thus also the sorting in the spam folder) as such. However, the expression of an e-mail indicating that a particular e-mail address was allegedly contacted is not sufficient to justify a prima facie evidence or a secondary presentation obligation on the part of the recipient. So to say to the sender “Oops, that was unfortunately in the spam filter” is not a good defense strategy.