Warning because of double optin e-mail

Today I became aware of a decision of the Berlin Regional Court that obligated a sender of a confirmation e-mail to cease and desist.

The operators have offered a newsletter and sent the following email to confirm this:

This e-mail was sufficient for the Berlin Regional Court, by way of an interim injunction, to assume a violation of § 7 UWG. According to the Berlin Regional Court, there was no effective consent of the recipient pursuant to Section 7 II No. 3 UWG. As a special reason, the court also referred to the fact that the e-mail, contrary to § 7 II No. 4 in conjunction with § 6 I No. 2, did not identify the natural or legal person on whose behalf the e-mail was sent. § 6 I No. 2, the e-mail did not identify the natural or legal person on whose behalf it was sent, which is why the e-mail was to be regarded as unreasonable harassment irrespective of whether the requirements of § 7 II No. 3 UWG were met.

The Berlin Regional Court expressly did not follow the Düsseldorf Higher Regional Court in this respect because it did not consider the case to be comparable.

This had not recognized the confirmation mail in the double opt-in procedure as impermissible advertising about 5 years ago.

Sending a (…) request for confirmation does not constitute unsolicited advertising because it is only in the recipient’s interest to clarify whether they have consented to advertising and not to obtain consent.

The Munich Higher Regional Court took a different view in 2012 and classified such an email as advertising, even if the email does not contain any advertising at all. The Düsseldorf Higher Regional Court also dealt with this more than questionable “outlier” ruling in the proceedings here.

After the OLG Düsseldorf therefore ruled comprehensibly

However, even if one were to assume a violation with the opposing view, this would in any case not be considered culpable, since there is no reasonable alternative for the defendant to the described contacting of the owner of the email address in order to control and verify the actual origin of the request.

many jurists had considered the circumstance to be settled. I am not aware of any other relevant ruling. Even the OLG Munich dealt with the circumstance anew in 2017.

In a new case, however, the Munich Higher Regional Court at the time read openly whether the confirmation e-mail was impermissible advertising as part of the double opt-in procedure:

“It is disputed whether this demand qualifies as advertising. The Munich Higher Regional Court ruled on this in its judgment of September 27, 2012, ref. 29 U 1682/12, while the Higher Regional Courts of Celle and Düsseldorf rejected this. If a company responds to a customer’s inquiry and asks whether the customer actually agrees to be contacted, this may not fall within the definition of advertising as a mere inquiry.“

Unfortunately, however, the defendant in 2017 was unable to provide evidence of the plaintiff’s contact. Therefore, the OLG Munich was able to leave open the question of whether the confirmation email was inadmissible:

“It [the defendant] has not proven that an initial inquiry was made from an e-mail (…)@m(…).de. The testimony of the witness H. in the first instance is not sufficient for this. (…) The witness only stated that a double opt-in request is generally only made “if a free ticket was ordered online” (…). The defendant did not provide evidence of the online request in the specific case.

The witness did not say when exactly the request was made, what data was provided, etc. The witness did not provide any further evidence or documentation. Further offers of proof or the presentation of documentation were not made. However, it is up to the company to document the contact with the customer and thereby prove consent, even if the orders were not completed (…)

It is difficult to say whether the issue will now arise again, whether a possible warning is part of an entrepreneurial risk or whether the decision of the Berlin Regional Court was now an isolated case.

However, there are three things to keep in mind to reduce the risk:

• The confirmation email should contain all the necessary data that is also present in an imprint.
• The mail should not contain your own advertising.
• The fact that someone has made a newsletter subscription or a registration with a portal/forum etc. should be logged in case there is a warning and that you have to be able to prove the request. Of course, data protection must be observed and any additional log files that are collected but no longer required after confirmation must be deleted.

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.