Federal Court of Justice on requirements for consent to email advertising by third parties

Consent to the receipt of commercial emails by third parties is invalid if the text of the consent declaration does not clearly indicate for which specific products these third parties are permitted to advertise. The Federal Court of Justice issued a corresponding ruling in a recently published judgment (Federal Court of Justice, March 14, 2017, Case VI ZR 721/15). In the relevant case, the defendant's pre-formulated consent text contained a link to a conclusive list of companies (“sponsors”) using the email address of the consenting individual for advertising purposes. The declaration of consent did not contain information on the specific products to be advertised by the respective sponsor.

Since the consenting individual was not able to identify the future advertised products, it is not sufficient to simply list the advertised companies to meet the requirements for effective consent, the court argued. The main criterion considered by the Federal Court of Justice is that without further specification in the consent text, the composition and scope of advertising could be changed or extended at any time. It has therefore not been made sufficiently transparent for the consenting individual to determine what kind of advertising he/she hast to expect.

Practical tip:

With its decision, the Federal Court of Justice underlines the high requirements placed on the transparency of consent declarations. Considering this view, it is doubtful whether “generic consent” to the receipt of any type of advertising can still be effectively obtained. In any case, the consenting individual must be made aware of the exact scope of his/her consent.