Exciting decision on e-mail access in civil procedure law

Background to the decision

Digital communication has become an integral part of modern legal transactions, but the question of the provability of access to electronic messages remains a legal challenge. In a world where emails, instant messages and other forms of digital communication dominate everyday life, the implications of these digital interactions on legal processes are of enormous importance. A recent decision by the Rostock Higher Regional Court (decision of 03.04.2024 – Ref.: 7 U 2/24) sheds light on this issue and provides important legal guidance. The case concerned the validity of a legally relevant declaration sent by email, the receipt of which was disputed by the recipient. The plaintiff took the view that the mere fact that the e-mail was sent and the absence of an error message indicated that it had been received by the addressee. Following this line of argument, the case posed a central question: Can the act of sending an email be considered sufficient proof of its receipt? The court’s decision brings clarity to the often confusing legal situation regarding digital communication channels and their legal recognition as evidence.

Legal assessment by the OLG Rostock

The court stated that prima facie evidence – i.e. evidence based on typical sequences of events – cannot be assumed for the receipt of an email. The Senate emphasized this:

“The Senate sees no basis for the assumption of prima facie evidence for the receipt of an email that has been sent (simply, in particular without confirmation of receipt or read receipt).”

This position is based on the prevailing opinion, which is also supported by supreme court case law and commentary in the literature. Consequently, for technical and procedural reasons, the receipt of a simple e-mail cannot be ensured in such a way that proof of receipt could be assumed.

The court went on to explain the specific nature of digital communication, which makes it difficult to provide clear evidence:

“The technical conditions of the internet and the diversity of email systems do not provide a sufficient guarantee that an email, once sent, has actually reached the recipient.”

This emphasizes the need for a critical examination of each individual case, taking into account the specific circumstances and technical details.

The court also refers to comparable case law to support its opinion:

“As has already been established in previous judgments, the fact that an email was sent from the sender’s server without an error message does not prove that it also reached the recipient’s server.”

This clarification underlines the legal challenge associated with digital messaging and makes it clear why the mere sending of an email is not considered sufficient to prove receipt.

Specific regulations in the UWG

However, it is important to note that this does not always apply, particularly in the area of competition law. According to § 13 Abs. 1 UWG, only the sending of a warning is required for it to be effective, not the actual receipt by the person being warned. This provision takes account of the fact that in certain legal constellations, proving access would cause disproportionate difficulties or unnecessarily complicate the enforcement of legal claims. In practice, this means that in the context of the UWG, the sender of a warning letter does not have to prove that the warning letter was received by the opponent, but only that it was sent.

Conclusion

This legal nuance underlines the complexity of providing evidence in digital communication and the need to be aware of the specific legal framework. The Higher Regional Court of Rostock clarifies that it cannot be inferred from a simple e-mail that it has been received by the recipient. This underlines the need to resort to more secure means of communication in legally significant cases or to use additional means of proof such as acknowledgements of receipt. In conclusion, the decision of the Higher Regional Court of Rostock is further proof of the importance of proper documentation of signatures and declarations of intent. In times of increasing digitalization, it is crucial not only to rely on the technical possibilities, but also to pay close attention to the legal framework and take appropriate precautions.

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.