On 14 April, the German Federal Court of Justice handed down a remarkable verdict on the permissibility of telephone marketing measures. The court ruled that consent to marketing calls shall only be valid and enforceable in the event it has been declared by a separate and expressed opt-in. In the underlying case, a publishing house wanted to collect opt-ins from the participants in a price draw
.
On the postcards, which the participants had to return, the following text was included: “
Tel. no. (e.g. for the purpose of notification about a won price and for further interesting telephone offers)
[…].”
The court declared this consent null and void, referring to the Payback decision of 16 July 2008 on consent requirements for e-mail marketing, where it was ruled that an opt-in to telephone marketing must be given by a separate declaration in order to be valid. Here, the opt-in was combined with the consent to receive calls for the purpose of notifying in case a price had been won and the declaration to participate in the price draw at all. The court derives the requirement of a separate opt-in from recital 17 of the European E-Privacy Directive, according to which, consent must be given by a “specific indication.” The same applies to e-mail, SMS and fax. Interpreted strictly, a declaration of consent must not even include more than one of the mentioned communication channels. The court has explicitly stated that consent to marketing calls is only valid in case it is limited to allowing telephone marketing. Accordingly, businesses should review their standard opt-in declarations and—if this is not yet the case—provide for separate boxes to be ticked or separate signatures for these kind of opt-ins.
Double Opt-In Not Valid Proof for Consent to Telephone Marketing
In a further recent decision by the Federal Court of Justice (judgment of 10 February 2010, I ZR 164/09), important guidelines on the burden of proof for opt-ins to telephone marketing have been issued. For e-mail marketing, it is acknowledged in German case law that a valid consent by the mail recipient can be proven by the so-called double opt-in procedure. This requires a user who has opted in; e.g., into the receipt of an e-mail newsletter, to confirm this opt-in by clicking on an individualized link that has been sent to the particular e-mail address that was indicated in the opt-in declaration. Thereby, it is sufficiently guaranteed that the owner of the mail address is identical to the person who declared the opt-in.
The highest German civil court has ruled that this double opt-in procedure is not able to prove a valid consent in telephone marketing measures. The judges explained that the e-mail confirmation would prove that the opt-in had actually been declared by the user of the indicated e-mail address; however, it could not also be guaranteed that the telephone number included in the opt-in actually belonged to the person who issued the e-mail confirmation. With this reasoning, the court rejected the mail-based double opt-in as sufficient proof for opt-in consent to marketing calls.
