Unsolicited telephone advertising

As unwanted telephone advertising , and cold calls , cold calls or cold calls , so-called unsolicited calls are by companies against individuals.

European Union

In the European Union Article 13 limited. The Directive on privacy and electronic communications , the telephone advertising . When transposing EU regulations into national law, the member state determines which form of advertising is permitted to consumers. There are two main variants. With the opt-out system, calls can be made to the consumer until they actively object. The opt-in system requires that the consumer has given active consent to the call. The EU regulation forces companies and other non-consumers to be "adequately" protected.

Germany

Legal

Such calls not expressly approved by the called party are prohibited in Germany by the law against unfair competition . In 2018, the Federal Network Agency received over 62,000 consumer complaints about telephone advertising.

In the event of abuse or violation, a fine of up to € 300,000 has been possible since October 9, 2013 ( Section 20 (2) of the Act against Unfair Competition , UWG). The upper fine of € 50,000 applicable between August 4, 2009 and October 9, 2013 was increased sixfold when the law against dubious business practices came into force.

“Cold call companies are part of organized crime today . This cannot be deterred by half-hearted tightening of the law; Rather, it must be prevented that these groups come into possession of personal data at all. "

- Alexander Dix , Berlin Commissioner for Data Protection and Freedom of Information , 2009

Combating unauthorized telephone advertising

On March 26, 2009, the German Bundestag passed a reading of the law to combat illegal telephone advertising and to improve consumer protection for special forms of distribution. It came into force on August 4, 2009. The Article Act provides for various changes and clarifications in the German Civil Code (BGB), the Act against Unfair Competition (UWG), the Telecommunications Act and the BGB Information Obligation Ordinance.

Violations of the previously existing ban on unauthorized telephone advertising can now be punished with a fine of up to € 50,000. The § 7 para. 2 no. 2 UWG was modified to include a telemarketer is only to be considered admissible if the called party has explicitly stated before, not to receive telemarketing calls. In the case of advertising calls, the caller is no longer allowed to withhold his phone number in order to conceal his identity. If this rule is violated, callers face fines of up to € 10,000. The consumer also has more opportunities to withdraw from contracts concluded over the phone. Contracts for the purchase of newspapers, magazines and magazines as well as lottery services can now - unlike before - be revoked.

The old version of the UWG already presented advertising telephone calls without the consent of the consumer as unreasonable nuisance. Telephone calls that represent a competitive act were and are prohibited. H. Calls with the purpose of promoting the sale or purchase of goods or the provision or purchase of services . This includes immovable property, rights and obligations ( § 7 Paragraph 1 and 2 No. 2, 1st alternative in conjunction with § 3 and § 2 Paragraph 1 No. 1 UWG).

According to a judgment of the Higher Regional Court in Frankfurt am Main in 2005, the existence of a business relationship is not sufficient to accept an implied or express consent from a consumer to advertising calls. In the present case, an insurance company called a consumer who was insured with it as a customer in order to obtain further insurance policies. The OLG Frankfurt am Main in its reasoning:

“The required consent of the policyholder to such calls cannot be seen in the fact that the customer provided his telephone number without further explanation when the insurance contract was concluded. This is because the policyholder regularly only expresses his consent to being called within the scope of the existing insurance relationship and the area of ​​insurance protection established by him (see BGH - Telefonwerbung V, p. 220 f.). This includes, for example, calls when processing a claim or as a reminder to pay the insurance premiums. "

The term “advertising” is not defined in the UWG itself, but on a European level. Ultimately, it goes back to Article 2 No. 1 of the EU Directive on Misleading September 10, 1984, which was amended and supplemented by the EU Directive on Comparative Advertising of October 6, 1997. Then there is advertising

"... every expression in the exercise of a trade , trade , craft or professional occupation with the aim of promoting the sale of goods or the provision of services, including immovable property, rights and obligations."

- 97/55 / ​​EC

The question of whether a call from a company with an existing business relationship is permitted to make an offer from outside the industry within a conversation relating to the contractual relationship has not yet been conclusively clarified legally.

Punishment

The Federal Network Agency punishes violations of the statutory provisions, it accepts advertisements by form or by e-mail (ruf Numbers [email protected]). If the evidence is secured, the Federal Network Agency takes measures such as disabling the number, withdrawing dialer registration and the like because of the misuse of phone numbers. Ä.

57,000 written complaints were received by the Federal Network Agency after the new law came into force on August 4, 2009 by April 2010. The authority imposed fines totaling € 694,000 in eleven proceedings, most recently in two cases alone € 194,000. The Federal Network Agency continued to call on consumers to advertise. In 2014 the number rose to 66 proceedings, but with a total of € 700,000 the amount of the fines imposed remained almost the same.

Opinion and market research

Regarding the legal situation with calls by market research institutes, there are now judgments that deny that consumers are authorized to make calls. The Stuttgart Higher Regional Court ruled in its decision of January 17, 2002:

"The same principles as for unsolicited telephone advertising also apply to unsolicited consumer surveys that are carried out by market research companies on a commercial basis."

The district court of Hamburg states:

"Even when calling for market research purposes, the interests of the individual concerned to prevent intrusion into their privacy outweigh the interests of the market research company."

- Hamburg Regional Court, judgment of June 30, 2006

practice

According to a survey by the Gesellschaft für Konsumforschung (GfK), there were 82.6 million unsolicited calls in Germany in the first quarter of 2006 alone. The consumer advice center (Vzbv) assumes 300 million unsolicited advertising calls per year. Although there is a voluntary commitment by the call center industry, companies aiming for short-term profitability ignore the work of the industry representatives. The 2009 amendment aimed, among other things, at preventing unwanted cold calls.

Defense options

According to § 8 UWG, the person who conducts inadmissible telephone advertising can claim removal and, if there is a risk of repetition, a right to omission . The called party is entitled to cease and desist with reference to § 823 , § 1004 BGB , since a "cold call" is an inadmissible and negligible nuisance. Competitors, associations with legal capacity to promote commercial or independent professional interests, chambers of crafts, consumer protection and competition centers can also assert a violation of Section 7 UWG and a right to cease and desist according to Section 8 UWG.

In addition, consumer advocates and relevant associations can claim the company's profits from unfair trading and allow it to flow into the federal budget. Consumer protection can take action after the names of the executing company or client and the respective interlocutor have been communicated. The statutory prohibition of unauthorized telephone advertising is laid down in Germany by the network authority. If the ban on illegal telephone advertising is violated, the Federal Network Agency can impose fines of up to € 50,000 under the UWG; for calls with suppressed or falsified number display up to € 10,000.

In addition, telephone providers are obliged to disclose the names and deliverable addresses of those involved in postal, telecommunications, telecommunications or media services to authorized bodies, including consumer advocates.

In addition, there are technical possibilities to fend off unwanted callers with the help of a telephone system (e.g. a Fritz! Box ). Using the number filter, certain numbers or calls with withheld numbers can be rejected or forwarded to an answering machine.

Self-control of advertisers

In 1971, the German Dialog Marketing Association introduced the Robinson list for letter and catalog mail. In this, private individuals can object to the sending of advertising. Since October 1, 2005, consumers have been able to specify their entry based on 13 categories by only selecting certain product and subject areas about which they do not want to be informed under any circumstances. Entering your own telephone number on the Robinson list ensures, through the monthly comparison of customer data, that at least reputable telemarketing companies do not call.

There are also several codes of honor for members of the association. This includes voluntary commitments for companies that also name methods that should not be used. In particular, attention is drawn to the data protection regulations, the observance of the Robinson list and the omission of simulated opinion or market research surveys as well as the methods of "print sales".

Since 2001, the German Internet Association has kept Robinson lists for e-mail, mobile communications and landline telephones against unauthorized electronic contact as part of consumer protection. Consumers can register here free of charge and are no longer contacted by a few hundred companies in the advertising industry. However, this does not guarantee protection against advertisers who do not adhere to the lists.

Austria

In Austria , cold calls are regulated in Section 107 of the Telecommunications Act (TKG 2003) issued in 2003. According to this paragraph, calls that have an advertising character and are made without the prior consent of the person called are not permitted (Paragraph 1 leg. Cit.). As in Germany, market research companies in Austria are permitted to make cold calls if they are actually used for anonymous data collection.

Unauthorized cold calls can be punished with an administrative penalty of up to € 58,000 in accordance with Section 109 (4) (8) TKG 2003. Reports can be submitted to the responsible telecommunications office. Although the calls are illegal in themselves, the resulting contracts are legally valid in Austria. In order to better protect consumers, a package was passed in the National Council in March 2011, which among other things regulates the right to withdraw from such contracts.

Switzerland

Since April 1, 2012, advertising calls to subscribers who have marked their phone book entry with an asterisk (*) (opt out) are , according to UWG Art. 3 Para. 1 let. u forbidden. In the event of a violation, those called can file a complaint with the police. Unwanted calls can also be reported to the State Secretariat for Economic Affairs (SECO).

Web links

Germany

• Bundesnetzagentur.de: online complaint form
• Act against Unfair Competition (legal text)
• Law to combat illegal telephone advertising and to improve consumer protection in the case of special forms of distribution
• Complaint form: Annoying telephone advertising by the North Rhine-Westphalia consumer center

Switzerland

• Swiss Confederation: Unsolicited advertising calls (information & brochures) from SECO

Individual evidence

1. ↑ Bundesnetzagentur - Presse - Bundesnetzagentur presents the 2018 annual report. Retrieved September 21, 2019 . 
2. ↑ Alexander Dix : Data protection and freedom of information. Report 2009. Berlin Commissioner for Data Protection and Freedom of Information (Ed.). Page 147. ( PDF; 1.3 MB ( Memento of the original from February 22, 2014 in the Internet Archive ) Info: The archive link has been inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this note. ) . 
3. ↑ OLG Frankfurt am Main, judgment of July 21, 2005, Az. 6 U 175/04; Full text .
4. ↑ EU Directive on Misleading, 84/450 / EEC
5. ↑ EU Directive on Comparative Advertising, 97/55 / ​​EC
6. ↑ Form selection for different types of number abuse
7. ↑ Federal Network Agency imposes further fines for unauthorized telephone advertising. Press release of the Federal Network Agency of July 29, 2010.
8. ↑ Despite the ban: the economy annoys thousands with unauthorized telephone advertising. In: Spiegel Online . April 11, 2015, accessed June 9, 2018 . 
9. ↑ OLG Stuttgart, judgment of January 17, 2002, Az. 2 U 95/01; Full text .
10. ^ LG Hamburg, judgment of June 30, 2006, Az. 309 S 276/05; Full text .
11. ↑ Consumer advocate calls for the end of all cold calls ( memento of the original from March 13, 2013 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. 
12. ↑ Regulator imposes fines for unauthorized telephone advertising
13. ^ Consolidated full text of the Telecommunications Act 2003 (TKG 2003) in the RIS
14. ↑ The administrative penalties are imposed by the telecommunications offices in accordance with Section 113 (3) and Section 109 (8) TKG 2003.
15. ↑ Telecommunications Offices. Retrieved November 14, 2017 . 
16. ↑ National Council resolves restrictions on telephone boobies. In: The press. March 30, 2011, accessed March 30, 2011 . 
17. ↑ Quiet from unsolicited advertising calls . Federal Office of Communications OFCOM, last updated on July 9, 2015, accessed on June 11, 2017.
18. ↑ Consumer forum ( Memento of the original dated August 29, 2013 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. 

Please note the information on legal issues!