Social media links in emails are not advertising!

In an exciting decision, the Augsburg Local Court ruled on 09 June 2023 that adding social media links to an email does not constitute advertising and that the corresponding email is therefore not spam. In doing so, the court formulated three guiding principles that support this decision.

What is advertising?

First, the court clarified what is meant by advertising. It defined advertising as all measures taken by a company to promote the sale of its products or services. This includes not only direct product-related advertising, but also indirect sales promotion such as image advertising or sponsoring. Image advertising refers to measures that are intended to strengthen the image of a company or brand without directly referring to specific products or services. Sponsorship, on the other hand, concerns the support of events, teams or individuals, allowing a company to benefit indirectly from the positive association. In this context, advertising is any statement made in the course of a business activity with the aim of promoting the sale of goods or services. The court made it clear that what matters is both the intention and the nature of the communication, and that advertising can take a wide variety of forms, both explicit and implicit.

Why are social media links not advertising?

The court clarified that a simple reference to a company’s social media presence in an email does not constitute advertising if that reference is not directly linked to a product or other promotional information. In this case, the reference to social media sites serves information purposes and is to be viewed similarly to the provision of further contact data. The court explained that this reference is not intended to directly promote the sale of products or services. There is also no indirect sales promotion through image advertising, as the reference to social media sites is to be seen as part of the employee’s signature. In doing so, the court emphasized that it was important to consider the context of the communication and that not every reference to a company’s online presence could automatically be classified as advertising. The judges pointed out that in an increasingly connected world, providing social media links can be seen as a way of making contact, similar to providing a phone number or email address. In such cases, the decisive factor is whether the reference is made with the intention of promoting the sale of products or services or whether it is merely for information purposes.

Protection of privacy and business interests

The court also found that an interference with the general right of personality or with business operations is only unlawful if the plaintiff’s interest in protection, which is aimed at protecting his personality and respecting his privacy, outweighs the defendant’s interests worthy of protection. This means that the company’s right to communicate with and advise its customers is an important factor to consider when evaluating whether an email can be considered spam. In this context, the court pointed out that the exchange of information and communication between companies and customers play an essential role in the modern business world. It underscored the importance of balancing individuals’ privacy rights with the legitimate interest of companies to use effective communication channels. It was emphasized that not every unsolicited email should automatically be considered an unlawful interference, and that it was necessary to consider the individual case and the specific circumstances, including the nature of the communication and the intent of the company.

Conclusion

This decision by the Augsburg Local Court brings clarity to the often controversial question of whether social media links in e-mails are considered advertising. Companies can now use social media links in their emails with greater confidence, as long as they are not directly linked to advertisements for products or services. However, it is still important to respect the privacy and personal rights of recipients and to ensure that communications are not intrusive or harassing.

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.