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Today I reported on this ruling of the OLG Nuremberg. Moving away from the actual legal issues surrounding advertising, the court also comments on another legal issue that I’m sure is not “on the radar” of many who do business.
Namely, the question is when an unreasonable harassment under § 7 para. 2 No. 3 UWG is present, popularly known as spam. In this context, the OLG Nuremberg expressly clarifies that spam is not only present when e-mail is used.
In addition to e-mails, the term electronic mail also includes SMS (short message service) and MMS (multimedia messaging service) as well as electronic messages within social networks. Since electronic mail reaches the recipient directly and individually, its advertising potential is much higher than a general audience advertising […]
Electronic mail is the asynchronous transmission of messages, where messages are stored until the recipient retrieves them. In addition to e-mails, this also includes messages via social networks, SMS and instant messaging […] Examples include all messages via social media services such as Xing, Facebook, LinkedIn or WhatsApp.
This means that on business portals such as Xing or LinkedIn, especially for private messages, the same standards must be applied as when contact is made via e-mail. This means that contact via these platforms can also be regarded as unreasonable harassment, which in case of doubt can lead to a warning by the contacted party. Exceptions to this can only be found in the law:
1. an entrepreneur has received the customer’s electronic mail address in connection with the sale of a good or service,
2. the Entrepreneur uses the address for direct advertising for its own similar goods or services,
3. the customer has not objected to the use and
4. the customer is clearly informed when the address is collected and each time it is used that he/she can object to the use at any time without incurring transmission costs other than those according to the basic rates.
This makes the completely indiscriminate contacting of irrelevant people on Xing or LinkedIn in particular a risky factor, especially if the contact is of an advertising nature. Courts have assumed amounts in dispute similar to those for e-mail, between 2,000.00 and 6,000.00 euros.
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.
