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Created on Sunday, 07 February 2010 12:25

Last Updated on Friday, 28 December 2012 18:59

One Promotional eMail can in itself be SPAM

Can really only one single promotional eMail make such a fuss that you can justifiably be admonished? The Federal Court of Justice gave an interesting answer to this in its decision of May 20, 2009 (re I ZR 218-07- eMail-Werbung II).

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The defendant, a GbR, was sued by a law firm because one of the partners sent this law firm an eMail with a 15-page long newsletter containing information for capital investors. The lawyer admonished the GbR, which denied any fault and especially and liability to pay the lawyers' damages. In their defense, the GbR claimed that this newsletter were no advertisement. Instead of that the defendant only promised not to send them any newsletters anymore.

The court clearly held that this was advertisement as defined in the art. 2 lit. a Directive 2006/114/EG concerning misleading and comparative advertising. Advertisement is any utterance of a business, trade or profession to promote its selling of goods and services.

This judgment brings a final precedence into the discussion if just one eMail constitutes a tort and so claims for cease and forbearance. In German legalese, it will be referred to "Eingriff in ihren eingerichteten und ausgeübten Gewerbebetrieb (interference in an instituted and practiced business enterprise)" and has been derived from §§823 I 1, 1004 I 1 2 BGB. BGH held that even one eMail with prior permission, be it only per phone, constitutes an interference in an instituted and practiced business enterprise and is subject to a restrictive injunction. Such interaction is interfering the business in itself and entails no other specific rights or entitlements. Unsolicited eMails always constitute interference. The interference is in the extra work of sorting out unrequested eMails, maybe also internet costs. However little the extra work and / or extra costs may be, mass sending of promotional eMails can be expected were the sending of one promotional eMail tolerated. In other words, it is better to not give the devil even your little finger, for then he will surely take the whole hand. As eMails are a cheap and quick way of forwarding promotion, it is a realistic expectation that such promotion will eventually get out of hand.