In a recent decision of 12 September 2013 (court ref. I ZR 208/12), the German Federal Court of Justice ruled that e-mails sent via “send-to-a-friend” functionality on websites must be considered illegal spam email unless the recipient expressly consented to receive the email. According to the court, responsibility to obtain consent rests with the website service provider, not the user. The court further held that it is irrelevant that the act of sending was initiated by a user, since the indirect promotional nature of ‘send-to-a-friend’ e-mails falls within the scope of German direct marketing regulation under Sec. 7 German Unfair Competition Act.
“Send-to-a-friend” functionality allows users to send an e-mail from the website to a third-party recipient linking to interesting content on the website. In this particular case, the e-mail was sent through the mail server of the website provider and in the name of the website provider. As a consequence, the Federal Court ruled that the “send-to-a-friend” functionality must be considered illegal under German law.
The court emphasised illegality where the website provider appears as the sender of the recommendation email, as it is virtually impossible for the provider to meet the requirements for express consent under Sec. 7 Unfair Competition Act. However, chances are that its reasoning would not have been different had the user been identified as the sender since the court predominantly focussed on the promotional intention of the website provider in its ruling. Further, if the user had appeared as the sender, this could give rise to other claims under unfair competition law on the basis concealing the identity of the advertiser in a promotional e-mail.
Under German Unfair Competition Law, the sending of commercial e-mails is subject to a strict and express consent requirement, usually following the so-called “double-opt-in” mechanic , i.e. the advertiser must not only obtain consent at the time of collecting the e-mail address, but also ensure that the user who provided the e-mail address is the owner of the account by sending a confirmation email with a link for the user to click on to confirm his or her consent. In practice, these requirements seem will be very challenging to obtain for “send-to-a-friend” functionality.
Recommendations for marketers
Nevertheless, “send-to-a-friend” marketing remains a popular and powerful tool for advertisers, and this latest ruling is unlikely to diminish its popularity in the short term. Website providers who wish to continue using “send-to-a-friend” marketing in Germany can mitigate risk by:
1. Clearly disclosing to the user that he or she should only use the feature if they have sufficient reason to assume that the recipient consents to receive the recommendation email
2. Identifying the user as the sender of the e-mail, not the website.
3. Not sending “send-to-a-friend” e-mails to individuals who have previously opted out of receiving marketing communications from the provider. An opt-out link should also be included in every “send-to-a-friend” e-mail.
4. Capping the number of messages a user is allowed to send and not incentivising sending by, for example, offering additional competition entries for each e-mail sent (currently common in many prize draw mechanics) .
However, while taking the above measures will limit enforcement risks on a practical level, from a purely legal point of view it seems that exposure can only be fully avoided by removing “send-to-a-friend” features from websites. Whether or not this spells the end of “send-to-a-friend” functionality in Germany in the longer term will depend on the level and significance of any enforcement activity by individuals, competitors and/or consumer protection associations following the court’s ruling.