BGH - I ZR 25/19

BGH - I ZR 25/19
Court:	BGH (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 13 ePrivacy Directive § 7 UWG § 8 UWG
Decided:	12.01.2022
Published:	01.06.2022
Parties:	Städtische Werke Lauf a.d. Pegnitz GmbH eprimo GmbH
National Case Number/Name:	I ZR 25/19
European Case Law Identifier:	ECLI:DE:BGH:2022:130122UIZR25.19.0
Appeal from:	OLG Nürnberg (Germany) 3 U 724/18
Appeal to:	Appealed - Confirmed CJEU C-102/20 - StWL Städtische Werke Lauf a.d. Pegnitz GmbH
Original Language(s):	German
Original Source:	rewis.io (in German)
Initial Contributor:	n/a

The Federal Court of Justice held in an unfair competition case that the display of advertisements disguised as emails in a user's email inbox is unlawful without prior consent.

English Summary

Facts

eprimo, a German electricity supplier, distributed advertisements consisting of displaying banners in the email inboxes of the T-Online free email service. When users opened their inbox, those advertisements were shown to them at random, indistinguishable from the list of emails in the users' inbox except for the fact that the date was replaced by the word ‘Anzeige’ (advertisement), no sender was mentioned and the text appeared against a grey background. When clicking on what looked like an email at first glance, the users were shown that advertisement. This procedure is known as inbox advertising.

Städtische Werke Lauf a.d Pegnitz GmbH (‘StWL’) is a competitor of eprimo and considered eprimo's inbox advertising unlawful under the rules of unfair competition because there was no prior consent by the users.

StWL, after at first succeeding with an action before the Regional Court of Nuremberg-Fürth, lost the case in the second instance before the Higher Regional Court of Nuremberg. When it appealed at the BGH, it referred the subject to the CJEU. In particular, it asked whether inbox advertising was compatible with the ePrivacy Directive and the Unfair Commercial Practices Directive which require consent for electronic mail that is sent to users for the purposes of direct marketing, prohibiting unsolicited communications.

The CJEU decided that inbox advertisements require prior consent.

Holding

The BGH agreed with the StWL and overturned the Regional Court's decision, taking into consideration the CJEU's ruling.

It held that eprimo had violated competition law and had to compensate StWL.

According to the court, pursuant to § 7(2)(3) Act against Unfair Competition (Gesetz gegen den unlauteren Wettbewerb - UWG), any direct marketing using the email inbox of the user requires prior consent. Such consent had not been obtained by eprimo. It assumed that it is irrelevant whether potential users of the free email service had been made aware of the use of parts of the internet pages by advertising providers. A merely general consent to receive advertisements, which is not related to the specific advertising complained of, in order not to have to pay for the use of the e-mail service, does not fulfil the requirements of consent pursuant to Article 13(1) ePrivacy Directive.

For the court, one important factor for the unlawfulness and the impact on the user's privacy was the fact that the inbox advertisements are displayed at a position where one would normally find personal email, thus constituting a significant burden on the user.

Comment

The German Unfair Competition Act (UWG) which is based on the Unfair Commercial Practices Directive and the ePrivacy Directive does not give data subjects rights to action in case of unsolicited advertisement, it only concerns the relationship between competitors.

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English Machine Translation of the Decision

The decision below is a machine translation of the German original. Please refer to the German original for more details.

The parties supply end customers with electricity. The defendant's intervener is an advertising agency. The defendant commissioned the intervener to place advertisements in the e-mail inboxes of users of the free e-mail service T-O. . The advertising was implemented in such a way that in the private inbox of a user of this e-mail service on January 15, 2017 in the area in which the e-mails received are displayed in list form (hereinafter: inbox), embedded in the e-mails received The following advertisement appeared with the following text: "e.   More savings: cheap electricity and gas. Secure top e.    prices with an attractive bonus now! Find out more at e.  .de": Corresponding advertisements appeared on December 12, 2016 and December 13 January 2017 in the user's inbox. Such advertising is displayed on special advertising spaces in the inbox of the mailbox of the free e-mail service of T. Deutschland GmbH. It is called "T-O.  .de Mail Ad" and could be booked by advertising customers of this provider. On the website accessed by the user of such a free e-mail inbox, a JavaScript code from an ad server (TAG) was integrated at the appropriate point in the inbox. As a result, when the website was opened, a request (adrequest) was sent to the ad server to display an advertising banner from the pool. The ad server then sent the appropriate parameters to the user's Internet browser, causing a randomly selected advertising banner to be displayed in the user's inbox. If the user clicked on the displayed advertisement, the input was first forwarded to the ad server, which logged the click and forwarded the browser to the advertiser's page. The advertisement appearing in the inbox was provided with the word "Advertisement" and could be removed from the inbox by clicking on the cross symbol "x" found next to it. Unlike the user's e-mails displayed in the inbox, the ad appeared with a gray background and contained neither a date nor a sender. Also, it could not be archived, replied to, or forwarded using the editing options provided by the email service provider. It was also not included in the number of unread user e-mails reported by the service and did not take up any storage space in the user's inbox sentenced by administrative order to refrain from advertising via the email account "T-o.  .de" in connection with the sale of electricity to end consumers in commercial transactions for the purposes of competition, if this is done as follows (Annex K3) [es the above advertisement is displayed]. The district court also ordered the defendant to pay warning costs of €1,531.90 plus interest and rejected the further payment application. On appeal by the defendant, the Court of Appeal dismissed the action (OLG Nuremberg, GRUR-RR 2019, 170). With the revision approved by the Court of Appeal, which the defendant requests to be rejected, the plaintiff seeks to restore the judgment of the Regional Court. The Senate has decided of January 30, 2020 (GRUR 2020, 420 = WRP 2020, 446 - Inbox-Werbung I) the Court of Justice of the European Union on the interpretation of Art. 2 Sentence 2 Letter h and Art. 13 Para. 1 of Directive 2002/58/ EG on the processing of personal data and the protection of privacy in electronic communications (Privacy Directive for electronic communications) and No. 26 of Annex I of Directive 2005/29/EC on unfair business-to-consumer commercial practices in the internal market (Unfair Commercial Practices Directive) submitted the following questions for a preliminary ruling: 1. Is the concept of sending within the meaning of Art. 2 Sentence 2 Letter h of Directive 2002/58/EC fulfilled if a message is not sent from a user of an electronic communications service to another user by a service provider to the electronic "address" of the second is sent to the user, but is automatically displayed by ad servers on certain designated areas in the e-mail inbox of a randomly selected user as a result of opening the password-protected website of an e-mail account (inbox advertising)?2. Does retrieval of a message within the meaning of Art. 2 Sentence 2 Letter h of Directive 2002/58/EC require that the recipient, after becoming aware of the existence of a message, triggers a programmed transmission of the message data through a voluntary request for retrieval, or is it sufficient if the appearance of a message in the inbox of an e-mail account is triggered by the user opening the password-protected website of his e-mail account?3. Is electronic mail within the meaning of Art. 13 Para. 1 of Directive 2002/58/EC also present if a message is not sent to an individual recipient who has already been specifically determined before transmission, but in the inbox of a randomly selected recipient user is displayed?4. Is electronic mail used for the purposes of direct advertising within the meaning of Article 13(1) of Directive 2002/58/EC only if the user is found to be a burden that goes beyond harassment?5. Individual advertising that meets the requirements of a "response" within the meaning of No. 26 sentence 1 of Annex I of Directive 2005/29/EC only exists if a customer is contacted using a medium that is conventionally used for individual communication between a sender and a recipient , or is it sufficient if - as in the case of the advertising at issue - an individual reference is established by the fact that the advertising is displayed in the inbox of a private e-mail account and thus in an area in which the customer can individually Expected messages addressed to him? The Court of Justice of the European Union ruled as follows in its judgment of November 25, 2021 (C-102/20, GRUR 2022, 87 = WRP 2022, 33 - StWL Städtische Werke Lauf a.d. Pegnitz):1. Art. 13 (1) of Directive 2002/58/EC is to be interpreted as meaning that the display of advertising messages in the inbox of a user of an e-mail service in a form that is similar to that of an actual e-mail and sent to the same Such e-mail constitutes a “use … of electronic mail for the purposes of direct marketing” within the meaning of this provision, without regard to the random determination of the recipients of these messages or the burden imposed on the user insofar as relevant since this use is authorized only on condition that the user has been informed clearly and precisely about the modalities of dissemination of such advertising, namely in the list of private e-mails received, and his consent to receive such advertising messages, for the specific case and in full knowledge of the facts.2. Annex I No. 26 of Directive 2005/29/EC is to be interpreted as meaning that a procedure consisting in placing advertising messages in a form similar to that of an actual e-mail in the inbox of a user of an e-mail service and in the same place as such an e-mail, falls under the concept of "persistent and undesired addressing" of the users of e-mail services within the meaning of this provision if, on the one hand, the insertion of these advertising messages was so frequent and regular that it can be classified as "stubborn response" and, on the other hand, it can be classified as "undesirable response" in the absence of consent given by this user before the display.