Court ruling: burden of proof for consent to e-mail marketing

On November 24, 2009, the Higher Regional Court of Duesseldorf issued an interesting ruling on the burden of proof for consents to e-mail marketing measures. The court found that a company that purchases e-mail addresses for the purpose of distributing electronic advertisements must not rely on the seller’s representation that all data subjects have consented to receive marketing e-mails. Rather, the purchaser shall be obliged to verify whether the intended recipients have consented. Due to the fact that German marketing regulations generally require an “explicit” consent in order for e-mail marketing measures to be lawful, the purchaser of the data will be obliged to check whether these consents are documented (e.g. in a written declaration). If a company does not comply with this prior-checking requirement, it might be held responsible for the unsolicited mailings.