Telephone advertising: Providing information in a link does not satisfy the requirements for a valid consent

According to Sec. 7 Subs.2 no. 2 UWG (German Unfair Competition Act) advertising by telephone is only permitted if the consumer gives its explicit consent in advance. Further, in case of conflict, the entity relying on the consent must prove that such valid consent was given. On 10 December 2014 the Regional Court of Frankfurt (LG Frankfurt) (2-06 O 030/14) had to decide about the validity of a consent given by customers to an advertising company.

In the underlying case, the The Federation of German Consumer Organisations (Verbraucherzentrale Bundesverband VZBV) sought an injunction against the aforementioned company. The defendant offered consumers the participation in a lottery game. However, to participate in that lottery, the consumer had to give its consent to receiving advertisement by partners of the advertising company. If the consumer wanted to get further information about the number, names and sectors of those partners they could use a link that supplied the required details. The VZBV was of the opinion, that supplying the information via a separate link does not satisfy the need of a consumer to build an informed decision and therefore he cannot give a valid consent.

The Regional Court of Frankfurt now took the same view. Following the Court’s judgement, it is not sufficient to provide the consumer with the necessary information about the type and extent of the advertising he is consenting to by using a separate link. Furthermore the Court made clear that a declaration of consent to use personal data for advertising purposes infringes data protection law if the customer only receives the information about what kind of data will be collected and processed by clicking a link.

This judgement again shows that companies often underestimate the challenges of obtaining valid consent for advertising. The number of court decisions in that field prove that “the devil is in the detail”.