The Munich Local Court had to decide how long consent to an e-mail newsletter is valid (AG Munich, ruling dated 14.02.2023 – Ref.: 161 C 12736/22).
If you are also one of those people who have subscribed to an e-mail newsletter at some point in their lives, then this ruling should interest you. The plaintiff had indisputably given his consent to a mail newsletter that provided him with information about golf. In 2017, he received a final mail about this, then nothing happened for four years. In 2021, the defendant suddenly sent the plaintiff another mail, but he considered this to be unauthorized advertising.
Away from the jurisprudence, two questions jump to mind: why did the defendant not send an e-mail newsletter for so long, and why did the plaintiff suddenly perceive an e-mail as spam, even though he had given his consent to it years before?
The answer to the first question is exhausted in organizational processes at the defendant, which have to do with a cooperation with the German Golf Association.
The answer to the second question, on the other hand, is obvious: the plaintiff received six e-mail newsletters in January 2022 alone. That can be quite annoying. The plaintiff subsequently sent the defendant a lawyer’s warning. However, the defendant rejected the warning, whereupon the plaintiff filed a lawsuit.
In the reasons for their ruling, the Munich judges took a ruling of the Federal Court of Justice as a starting point (BGH ruling of February 1, 2018 – III ZR 196/17). In it, the BGH first looked for statutory provisions, but found none. So it came to the conclusion that consent is only valid during the time of the contractual relationship and for a maximum of two years thereafter.
However, the Munich judges did not want to see an automatic lapse of time. So they looked at the circumstances of the individual case and concluded that the defendant was no longer allowed to send advertising emails to the plaintiff after the end of the cooperation with the German Golf Association.
What do we learn from this? Always send regular advertising e-mails, otherwise you could be in trouble … No, seriously, everyone should check whether the recipients still meet the requirements for receiving advertising e-mails. A longer inactivity leads in any case to a legal risk.