Tue, Apr. 20, 2004

No Advertising Spam in Germany

CK - Washington.   This fine Monday morning brings a March 11, 2004 decision by the German Supreme Court in Karlsruhe against commercial spam. Based on the unfair competition statute, UWG, the court ruled in the matter I ZR 81/01 that such spam may create an unfair competitive advantage for some businesses and encourage others to follow suit, ultimately causing significant damages. The München court of first instance had approved a cease and desist demand by the addressee of such mails. The München court of appeals had dismissed the complaint after the sender promised not to send spam to two of the addressee's email addresses because it found no violation of the UWG.

The Civil Chamber of the Supreme Court evaluated unwanted commercial email (UCE) in a broader context than just the parties which happened to be competitors, and found it to constitute an unacceptable annoyance for any affected party. Therefore, any mass UCE, regardless of the addressee's domain or address, sent without the consent of the addressee, can constitute a violation of §1 UWG. That includes UCE sent by third parties where the apparent sender fails to take appropriate precautions against mistakes.

The latter aspect may lead eventually to new responsibilities for web sites offering to generate emails to third parties, but the decision focuses on more limited facts. In this case, the defendant had argued that a third party had mistyped or wrongly selected the addressee's email address which differs from the setting of web-site generated mail actually triggered by visitors, such as e-cards.

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