Tag Archives: Email

German Court Rules on Consent Verification Requirement for Email Marketing

Posted on December 8, 2009 by Hunton & Williams LLP

On November 3, 2009, the Higher Regional Court of Düsseldorf (OLG Düsseldorf, Az. I-20 U 137/09) ruled on the duty to verify consent for email marketing with respect to purchased email addresses. According to the Court, a company that purchases email addresses for marketing purposes must verify customer consent itself – the company cannot rely on a data broker’s statement that it obtained the necessary consents.

This decision came in an interim injunction proceeding to cease unsolicited email marketing. The Court ruled in favor of the claimant, finding that the company failed to take necessary measures to verify consent.  The claimant was able to obtain injunctive relief against the defendant under Sections 8 (1), (3), 3 (1) and 7 (2) No. 3 of the Unfair Competition Act.  The Court specified that the defendant did not have a duty to verify individual consents by phone, but could conduct verification by reviewing the stored data of each customer.  Since the law requires "explicit" customer consent to use email addresses for marketing, consents must be documented on a regular basis to be considered valid.

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Deutsche Bahn Accepts € 1.1 Million Fine Imposed for Violation of Data Protection Law

Posted on October 28, 2009 by Hunton & Williams LLP

On Friday, October 23, 2009, the German Railways Operator Deutsche Bahn AG announced that they would pay a fine of over €1.1 million that was imposed on October 16, 2009 by the Berlin data protection authority.  This fine is the highest ever imposed by a German data protection authority.  The imposition of this fine follows a major data protection scandal that reportedly broke out within the company.  From 2002 to 2005, Deutsche Bahn had screened a large quantity of employee data and compared it to supplier data in an effort to combat corruption, but without specific suspicions related to individual employees.  In addition, the regulator considered activities by the company’s security department from 2006 to 2007, which included monitoring the email communications of all employees who used external email accounts at work.  The purpose of this monitoring was to identify communication with journalists and employees of members of the federal parliament to detect which employees may have disclosed company information.  At the time it broke, the scandal cost the CEO and several top managers their jobs.  Thereafter, a major restructuring was undertaken within the company.  In addition to the changes in top management, a separate position was created at the CEO level for compliance, data protection and legal affairs.  Furthermore, it was agreed with the works council, that the company will develop new guidelines for HR data protection by the end of November.  More information is available from the Berlin data protection authority’s press release (in German).

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New Anti-Spam Law Takes Effect in Israel

Posted on January 13, 2009 by Hunton & Williams LLP

On December 1, 2008, a strict anti-spam law came into effect in Israel.  The legislation, enacted as an amendment to the country’s Communications Law, prohibits the delivery of advertisements using mobile text messaging, email, fax or automatic dialing systems without first obtaining the recipient’s explicit written consent.  The law contains several exceptions to the prior consent requirement.  For example, advertisers may reach out to businesses to inquire whether they wish to receive marketing communications.  Advertisers also may send unsolicited marketing communications to individuals with whom they have established a prior business relationship, but the recipients retain the right to opt out of receiving marketing communications in the future.  The law also regulates the content of marketing communications. It requires advertisers to include in a commercial message the word "advertisement" and the advertiser’s name, address and contact information, including an email address that recipients may use to opt out.  The law contains strong enforcement provisions. Recipients of unsolicited communications may sue advertisers to collect up to the equivalent of $250 for every unsolicited communication, without proving actual damages.  Violators also may face criminal penalties and fines potentially exceeding the equivalent of $50,000.

A press release from the Israel Ministry of Communications is available here.

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