Rechtsprechung

  • Rechtssachenbeschreibung
    • Nationale Kennung: Higher Regional Court, Judgment 8 U 153/17
    • Mitgliedstaat: Deutschland
    • Gebräuchliche Bezeichnung:Kontaktaufnahme durch Makler bei Privatanzeige
    • Art des Beschlusses: Beschluss des Obersten Gerichts
    • Beschlussdatum: 12/06/2018
    • Gericht: Oberlandesgericht
    • Betreff:
    • Kläger:
    • Beklagter:
    • Schlagworte: advertising, seller, immovable property, real estate, personal data, harassment, injunction, cessation order, telephone, unlawful practice, right of privacy
  • Artikel der Richtlinie
    Misleading and Comparative Advertising Directive, Article 2 Misleading and Comparative Advertising Directive, Article 2 Misleading and Comparative Advertising Directive, Article 2, (a)
  • Leitsatz

    The call by a real estate agent to a consumer who has offered an apartment for sale by means of an advertisement is not an unlawful advertising call pursuant to article 7 paragraph 2 no. 2 UWG. The announcement with indication of the telephone number represents - to the Court - a consent.

  • Sachverhalt

    The plaintiff is a lawyer and offered her apartment for private sale on eBay, indicating her telephone number.

    The plaintiff was approached by more than 80 brokers.

    An employee of the defendant, who is a real estate agent, called the plaintiff and asked whether the defendant was allowed to present the apartment to her customer in a non-committal way and free of charge.

    The plaintiff considered the call to be an unreasonable harassment within the meaning of Section 7 (2) No. 2 UWG and found her general right of personality to be infringed as a result.

    The Court of First Instance (Landgericht) granted the injunction applied for, and upheld the action in its subsequent judgment.

    The defendant filed an appeal before the court of appeal (Oberlandesgericht).

  • Rechtsfrage

    The main legal issue was to determine whether the defendant’s phone call was to be considered as advertising in the sense of article 7 paragraph 2 no. 2 UWG

  • Entscheidung

    According to case law and legislation (article 2 lit. (a) of Directive 2006/114/EC on misleading and comparative advertising), the Court reaches the conclusion that both direct product-related advertising as well as indirect sales promotion is to be considered advertising. Thus, the defendant's call of 5 July 2017 did indeed constitute telephone advertising within the meaning of article 7 (2) no. 2 UWG.

    Furthermore, the Court had to verify if that advertising had been unlawful, i.e. if it had infringed the plaintiff’s general right of privacy by calling without prior consent. The Court, however, found that by creating and publishing its advertisement, the plaintiff consented not only implicitly but also expressly to the establishment of telephone contact.

    The defendant's telephone call of 5 July 2017 was not unsolicited advertising within the meaning of Section 7 (2) No. 2 UWG and did not infringe the plaintiff's general right to privacy.

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  • Ergebnis

    The defendant's telephone call of 5 July 2017 was not unsolicited advertising within the meaning of Section 7 (2) No. 2 UWG and did not infringe the plaintiff's general right to privacy.

    The plaintiff is not entitled to an injunction against the defendant pursuant to articles 823 (1), 1004 BGB i.V.m. article 7 exp. 2 No. 2 UWG.