In a judgment dated 15 December 2015, case no VI ZR
134/15, ("Judgment") the German Federal
Supreme Court ("FSC";
Bundesgerichtshof – BGH) confirmed that an
electronic mailbox held by a consumer shall be covered by the
so-called private sphere of a natural person as part of its general
right of privacy. Consequently, the FSC concluded that automatic
reply emails by a company to a consumer, which contain not only a
confirmation of receipt of an earlier email sent by the consumer
but also additional adverts, shall qualify as violation of the
natural person's general right of privacy, provided that the
relevant consumer has expressly refused to receive
Facts of the Judgment
The plaintiff, a consumer, sent a notice termination to the
defendant, an insurance company. The defendant sent an automatic
reply to plaintiff, confirming receipt of plaintiff's email and
announcing a detailed response to follow by separate email. In the
signature of defendant's email, advertising statements in
relation to certain weather services were displayed. The plaintiff
responded to defendant's email, demanding that defendant stop
sending such advertising statements. Notwithstanding,
defendant's email system again sent an automated response,
containing the same adverts. Finally, respondent filed an
injunction in order to prohibit defendant to send the
aforementioned (or similar) electronic adverts without
plaintiff's express consent.
Scope of the Judgment
The FSC held in favor of plaintiff and confirmed the injunction
granted by the court of first instance.
The FSC held that the plaintiff shall have a right to file an
injunction, which results from violation of plaintiff's general
right to privacy and is based on sections 823(1) and 1004(1) s. 2
German Civil Code (Bürgerliches Gesetzbuch –
BGB). In particular, the FSC made reference to earlier
judgments which had established the prohibition to deliver
postal advertisings that disregard the relevant
recipient's express rejection. The FSC expressly transferred
those principles to electronic advertisings. Further, the
FSC referred to Article 13(1) of the Directive on Privacy and
Electronic Communications 2002/58/EC
("Directive"), according to which the
use of electronic mail for the purposes of direct marketing may
only be allowed in respect of subscribers who have given their
prior consent. The FSC emphasized that also the recitals 1, 12 and
40 of the Directive support the finding that Article 13 shall aim
on protection of the general right of privacy. The FSC explained
that there was no need to decide whether each violation of Article
13 of the Directive shall automatically qualify as violation of the
general right of privacy, since at least defendant's last
automated email entirely disregarded plaintiff's express wish
not to receive any further email advertisings. In the FSC's
view, ignoring a consumer's express wish not to receive
electronic adverts shall always qualify as violation of the
relevant data subject's general right to privacy. Against this
backdrop, the fact that defendant's automated email replies
also contain a confirmation of receipt of the consumer's email
shall be irrelevant.
Further, the FSC held that violation of plaintiff's general
right of privacy shall be regarded as illegal
(rechtswidrig). In the FSC's view, plaintiff's
interests (i.e. protection of his / her privacy) shall outweigh
defendant's interest to approach its customers for the purposes
of commercial advertising. The decisive factor when balancing the
adverse interests against each other was the fact that plaintiff
had expressly refused to receive further electronic adverts; also,
the FSC emphasized that there was no practical way for the
plaintiff to prevent receipt of such communications. Accordingly,
the interests of a consumer in protection of his / her privacy
(private sphere) shall prevail.
The Judgment has not only an impact on automated reply emails
(so called auto-responders), but also on other commercial emails.
Any communication from a company to a consumer, which contains
lawful contents, might be invalidated by implementing advertising
content, provided that the consumer has refused such to receive
such adverts. On the other hand, it appears that the ruling from
the FSC's Judgment shall not be transferred to email
communications between two companies. Finally, it appears to be
still an open question whether the FSC's ruling can be
transferred to advertisings which are attached to postal
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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