When automated advertising is allowed in the mailbox

Karlsruhe Before a declaration of consent, users would have to be informed clearly and precisely about the exact modalities of the distribution of such advertising (Az. I ZR 25/19). In the specific case, the Central Franconian electricity provider Städtisches Werk Lauf an der Pegnitz had complained about advertisements by competitor Eprimo from Neu-Isenburg near Frankfurt / Main in free mailboxes from T-Online. This advertising measure violates the rules on unfair competition. The District Court of Nuremberg-Fürth ordered Eprimo to refrain from such advertising. However, the Nuremberg Higher Regional Court dismissed the lawsuit. The BGH referred questions to the Court of Justice of the European Union on the interpretation of the EU Data Protection Directive for Electronic Communications and the Unfair Commercial Practices Directive. The Luxembourg court ruled in November that unsolicited advertising messages disguised as e-mails in the mailbox may violate EU law. Due to the risk of confusion with correct mails, people could be forwarded to advertising pages against their will. So-called inbox advertising, which looks almost like a regular email in the inbox, is only allowed if the users have expressly agreed in advance to receive such messages. In response to the revision of the municipal plant Lauf an der Pegnitz, the BGH overturned the judgment of the Higher Regional Court. The district court had rightly sentenced Eprimo to cease and desist and reimbursement of the warning costs. The BGH decision is dated January 13, 2022.