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Permission to send an e-mail, allows to send an e-mail

The headline for this blog post sounds a bit like a click trap, doesn’t it? However, there is a funny court case behind it, which at least made it to the Higher Regional Court (here the Kammergericht).

But in fact, the ruling of November 22, 2022 (5 U 1043/20) is about a dispute in Berlin that has already been smoldering for 3 years, which the Regional Court decided back in 2020 in favor of a lawyer who had received several newsletters per week, although he had originally only given consent to a newslette 1x per week. However, the consent of the defendant sender was worded in such a way that explicit consent was given to receive a weekly newsletter. Although the advertising company violated this, it did not want to issue a cease-and-desist declaration with a penalty clause before court and was therefore finally ordered to cease and desist by the Berlin Regional Court.

Two years later, the Kammergericht now clarified that there was effective consent for a newsletter sent out weekly. This consent but then did not allow a higher frequency of emails. The newsletters exceeding the agreed scope then constituted unreasonable harassment in the form of spam. Since the court also made it clear that consent for more newsletters would of course also have been possible, the advice to clients can only be to check their consent for e-mailing carefully and to adhere to it. Any leeway or “interpretation” of consents is prohibited, as these are already an exception to the fundamental inadmissibility.

Marian Härtel

Marian Härtel

Marian Härtel is a lawyer and entrepreneur specializing in copyright law, competition law and IT/IP law, with a focus on games, esports, media and blockchain.

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