GermanyGesetz gegen den unlauteren Wettbewerb, Commercial Electronic Messages
UWG § 7 Abs. 2 Nr. 2 und 3, Abs. 3
In force since .
A commercial messages rule binding private bodies.
- Obligation class
- Consent, Disclosure, Prohibition
What it requires
- Obtain the addressee's prior express consent before advertising using an automatic calling machine, a fax machine, or electronic mail, unless the existing-customer exception below applies.NIST Privacy FrameworkCT.PO-P1
- You may market your own similar goods or services to an existing customer by electronic mail without fresh consent only if you obtained their electronic address in connection with a sale, they have not objected to that use, and you clearly told them, both when collecting the address and at every use, that they may object at any time at no cost beyond the basic transmission tariff.NIST Privacy FrameworkCT.PO-P1NIST Privacy FrameworkCT.PO-P3
- Never send an advertising message that disguises or conceals the sender's identity on whose behalf it is transmitted, that fails to identify the message clearly as a commercial communication with a clearly identifiable sender and clearly identifiable, easily accessible terms for any promotional offer or prize draw, or that invites the recipient to a website with the same failing.NIST Privacy FrameworkCM.AW-P1
- Every advertising message must carry a valid address the recipient can use to ask that such messages stop, usable at no cost beyond the basic transmission tariff.NIST Privacy FrameworkCT.PO-P3
These lines are LexLint's reading of the law's text. Also read by: Bundesgerichtshof, judgment of , I ZR 25/19 (Inbox-Werbung II) (recorded ).
In the frameworks
- NIST Privacy Framework
- CT.PO-P1Policies, processes, and procedures for authorizing data processing (e.g., organizational decisions, individual consent), revoking authorizations, and maintaining authorizations are established and in place.
- CT.PO-P3Policies, processes, and procedures for enabling individuals’ data processing preferences and requests are established and in place.
- CM.AW-P1Mechanisms (e.g., notices, internal or public reports) for communicating data processing purposes, practices, associated privacy risks, and options for enabling individuals’ data processing preferences and requests are established and in place.
- FINOS AIGF
- AIR-PREV-005System Acceptance Testing
- AIR-DET-021Agent Decision Audit and Explainability
Our reading of where this law's duties sit in each framework, and in the NIST Privacy Framework, line by line beside each duty above. It never says that running a control meets the law. How we read a framework against the law
If you get it wrong
Criminal exposureNo
Private right of actionYes
Penalty structure
Applies only to the automatic-calling-machine limb of UWG § 7 Abs. 2 Nr. 2 when directed at a consumer without prior express consent (UWG § 20 Abs. 1 Nr. 1, Abs. 2); the fax and electronic-mail limb of Nr. 2 and all of Nr. 3 carry no administrative fine of their own and are enforced only through the civil actions in UWG §§ 8 and 9.
- Rule
- Fixed only
- As of
- Currency
- EUR
- Fixed cap
- 300,000
Who enforces it
Enforcement body
For the automatic-calling-machine limb directed at a consumer, the Bundesnetzagentur für Elektrizität, Gas, Telekommunikation, Post und Eisenbahnen imposes the shared fine with telephone advertising. For every other violation of this section, competitors, qualified trade and consumer associations, and chambers of commerce may seek an injunction under UWG § 8, and a competitor may claim damages under UWG § 9(1); the Unfair Competition Act gives a consumer no damages claim of their own.
Settledness
- As of
- Case link
- https://www.bundesgerichtshof.de/SharedDocs/Entscheidungen/DE/Zivilsenate/I_ZS/2019/I_ZR__25-19A.pdf?__blob=publicationFile&v=1
- Case citation
- Bundesgerichtshof, judgment of , I ZR 25/19 (Inbox-Werbung II)
- Open questions
- Does 'elektronischer Post' in Section 7(2) number 2 UWG reach an advertising message that reaches the user outside an e-mail inbox, such as a message in a messaging application or a push notification, when the Bundesgerichtshof has treated an advertisement displayed in the list of received e-mails as electronic mail?
- Does an address the customer entered when registering for a free service meet Section 7(3) number 1 UWG, which requires that the business obtained the address 'im Zusammenhang mit dem Verkauf einer Ware oder Dienstleistung'?
What this law does
Section 7(2) number 2 deems an unreasonable harassment always present where a person advertises using an automatic calling machine, a fax machine, or electronic mail without the addressee's prior express consent.
Section 7(3) excuses electronic-mail advertising from that consent requirement where a business obtained the customer's electronic address in connection with selling them a good or service, uses it only to market its own similar goods or services, the customer has not objected, and the customer was clearly told at collection and at every use that they may object at any time at no cost beyond the basic transmission tariff.
Section 7(2) number 3 separately deems an unreasonable harassment always present where an advertising message disguises or conceals the identity of the sender on whose behalf it is transmitted, breaches the commercial-communication labelling duties of Digitale-Dienste-Gesetz § 6(1) (which requires a commercial communication to be clearly identifiable as such, its sender clearly identifiable, and any promotional offer or prize draw clearly identifiable with easily accessible terms) or invites the recipient to a website that itself breaches that duty, or carries no valid address the recipient can use to ask that such messages stop at no cost beyond the basic transmission tariff.
Only the automatic-calling-machine limb of number 2, when directed at a consumer, shares the administrative fine of up to 300,000 euros that UWG § 20(1) number 1 attaches to unconsented telephone advertising; the fax and electronic-mail limb of number 2 and all of number 3 carry no administrative fine of their own under the Unfair Competition Act and are enforced only through the civil injunction and damages actions of UWG §§ 8 and 9.
The Digitale-Dienste-Gesetz separately fines a deliberate disguise of an email's sender or commercial character in its header or subject line up to 300,000 euros under its own § 33(1), (6) number 1(a).
When LexLint raises it
When your app profile says your app sends automated outreach, places automated calls, sends automated texts, sends commercial email or sends faxes.
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