In its judgement of 9 December 2011, the Regional Court of Berlin (Case No. 15 O 343/11) had to decide on the permissibility of a certain e-mail advertising campaign. While after several decisions by the Federal Court of Justice, it is settled case law that an opt-in is generally required for e-mail marketing measures and that such an opt-in must be “separate” in the sense that it may not extend to other marketing forms such as telephone calls or telefax messages, the Berlin judges were, in this case, also called to rule upon the questions whether the consent was specific enough and whether it was still valid.
The judges held that, in this case, the declaration of consent did not meet the legal requirements. They were of the opinion that for consent to be valid, it must only refer to a specific electronic marketing measure of a specified company. Here, the defendant had only obtained a “general consent” which basically allowed “any kind of marketing e-mails by an unlimited number of companies from various economic sectors.”
Also, the court found the declaration of consent to be outdated. It ruled that consent may only justify e-mail marketing measures for a certain period of time. After a period of one-and-a-half years, however, as in the case at hand, the consent would have become void because, according to the judges of the Regional Court of Berlin, the consent would no longer refer to the “specific case.”
The judgement illustrates the importance of complying with the high demands on valid declarations of consent in Germany. Businesses should not only carefully draft the declarations but also have in place a proper opt-in management system.
