Rechtsprechung

  • Rechtssachenbeschreibung
    • Nationale Kennung: Federal Court of Justice, Judgment VI ZR 225/17
    • Mitgliedstaat: Deutschland
    • Gebräuchliche Bezeichnung:Kundenzufriedenheitsbefragung
    • Art des Beschlusses: Gerichtsbeschluss im Rechtsmittelverfahren
    • Beschlussdatum: 10/07/2018
    • Gericht: Bundesgerichtshof
    • Betreff:
    • Kläger:
    • Beklagter:
    • Schlagworte: advertising, email, communication medium, personal data, data protection, consumer rights, rights of the trader, distance selling, purchaser, seller, significant inconvenience, unlawful practice, legal rights, invoice, economic interests, cessation order
  • Artikel der Richtlinie
    Misleading and Comparative Advertising Directive, Article 2 Misleading and Comparative Advertising Directive, Article 2, (a)
  • Leitsatz

    ECLI:DE:BGH:2018:100718UVIZR225.17.0


    The request for a customer rating after the purchase of a product may constitute unlawful advertising. Such a request can only be admissible in exceptional cases if a clear and explicit reference to the possibility of objection at any time is offered when the customer's e-mail address is requested.

  • Sachverhalt

    The plaintiff (private customer) made a purchase from the defendant (trader) through the internet platform ‘Amazon Marketplace’. After sales processing, the defendant sent the corresponding invoice by email and simultaneously included a customer survey, inviting the plaintiff to rate the defendant’s performance. The plaintiff saw the e-mail as an unsolicited, unauthorised sending of advertising that violated his general right of personality. The First Instance Court (Amtsgericht) dismissed the complaint. The Court of Appeal (Landgericht) dismissed the appeal, too.

    With the Revision-Appeal on the Federal Court of Justice (BGH) the plaintiff continued to pursue his claim.

  • Rechtsfrage

    The main legal issue, in this case, is to clarify when it is permissible or rather unlawful, to interfere with privacy and thus the general right of personality through advertising/customer survey using electronic communication?

    In order to reach a conclusion, the Federal Court of Justice (Bundesgerichtshof) examines several questions:

    - whether a customer rating is to be considered advertising. The BGH states in the light of article 2 letter a of Directive 2006/114/EC, which defines ‘advertising’, that a customer survey is to be considered as such.

    - whether it is permissible to send advertising through e-mail. The BGH finds that it is only permissible with the prior consent of the customer. (article 13 paragraph 1, recitals 1, 12 and 40 of Directive 2002/58/EC on the processing of personal data and the protection of privacy in the electronic communications sector)

    - whether the simultaneous sending of non-consented advertising (customer rating) together with a lawful sending (an invoice) through e-mail might be permissible. The BGH denies this question.

    - whether the plaintiff has against the defendant a cessation claim action. The BGH confirms the right to a cessation claim, because of an illegal interference with his general personality right, however in an analogous way from article 823 paragraph 1, article 1004 paragraph 1 sentence 2 BGB. (not out of UWG regulation).

    In which direction the necessary weighing of the conflicting interests of the parties is to be balanced, considering the interference with the plaintiff's general right of personality and the legitimate interest of the defendant to contact its customers for the purpose of advertising. The BGH reaches the conclusion that it must be in the detriment of the defendant. (Even if the impairment for the consumer in the sense of article 7 paragraph 2 UWG is not significant, the general permission of this kind of method for advertising would lead to a significant impairment by the sum effect.)

  • Entscheidung

    It is unlawful to interfere with privacy and thus, the general right of personality through advertising by means of electronic communication without the prior consent of the customer.

    Volltext: Volltext

  • Verbundene Rechtssachen

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  • Rechtsliteratur

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  • Ergebnis

    The Federal Court of Justice (BGH) decided that the judgment of the Court of appeal (Landgericht) must be set aside.