Unwanted advertising

Unwanted advertising is advertising the delivery of which the recipient has neither expressly nor conclusively agreed to. Most of the time, these are letters , e-mails , telephone calls , SMS and faxes that the person concerned receives without having expressly ordered them.

Resistance to unsolicited advertising is protected in Germany by the right to informational self-determination . This includes consumer data protection and the Consumer Information Act . In Austria it is possible to waive advertising for direct mail.

Address trading is an important source of data for unsolicited advertising .

Unwanted advertising

At the apartment door

see: Doorstep selling , push column

Mailbox

Germany

Advertising ban

In Germany , recipients can protect themselves against unsolicited, unaddressed ( prospectus distribution ), unwanted advertising, such as direct mail , by pointing out on the mailbox that advertising is not wanted ( advertising refusals ). B. “ No advertising and free newspapers, please ”. Serious distributors usually observe this notice. In 2011, around 15% of households in Germany had posted a corresponding note on their mailboxes. Instead of preventing all advertising from being labeled on the mailbox, an express message to the advertising company can also be precisely filtered.

In the case of editorial advertising leaflets, free weekly newspapers or free newspapers with advertising inserts, the note “ no advertising ” is not sufficient to protect yourself against unwanted delivery of these direct mail items . Here the note must be supplemented by the addition “ no free newspapers ” (OLG Hamm, judgment of July 14, 2011, Az. I-4 U 42/11).

Stickers on a mailbox system

Post deliverers and prospectus distributors are not allowed to post advertising materials or direct mail items that are not personally addressed here . This also applies to so-called partially addressed items, e.g. B. "To the garden friends of the house Bergstrasse 10, Musterstadt". However, personally addressed advertising mail must be delivered.

You can protect yourself against the delivery of personally addressed advertising mail with an entry in Robinson lists. In Germany these are the German Robinson lists of the IDI and the DDV Robinson list of the DDV , whose members, the advertising companies, do not send mail advertising to the registered addresses for 5 years.

Austria

In Austria it is possible to waive advertising for direct mail.

Switzerland

In Switzerland , a stop sticker protects against unaddressed or partially addressed advertisements that are delivered by the post office or professional distribution companies. On the other hand, Swiss Post delivers begging letters from ZEWO -certified relief organizations and scattered items from political parties and non-partisan committees as well as public administrations, notices and information from recycling companies.

e-mail

Unsolicited e-mail advertising is often referred to as spam. Most of the emails are sent unsolicited to the recipient. They are sent en masse and have promotional content. This process is called spamming, the perpetrator being a spammer.

E-mail is one of the most important services on the Internet. However, the fast, reliable and inexpensive sending of e-mails is increasingly being misused by sending unsolicited advertising . In the meantime, unsolicited e-mails sent in bulk make up the majority of all e-mail traffic and thus jeopardize the overall reliability of the service.

Since the reform of the law against unfair competition (UWG) in July 2004, there have been statutory regulations on advertising by e-mail for the first time in Section 7, Paragraph 2, No. 3 and Paragraph 3 of the UWG. In accordance with previous case law, Section 7 (2) No. 3 UWG considers, among other things, the use of electronic mail for advertising purposes without the consent of the addressee to be anti-competitive.

phone

The legal situation in the area of telephone marketing has been fixed by law since July 8, 2004. In the private customer area, active telephone marketing, in which the call originates from the company, continues to be very limited. In principle, advertising calls to consumers are only permitted with the prior consent of the consumer to be called. Telemarketers who are organized in the DDV also undertake not to call before 8:00 a.m. and after 8:00 p.m. and to refrain from calling on Sundays and public holidays.

In Switzerland , calling people who have an * in front of their number in the phone book is prohibited ( opt out ). In the event of violations, the person called can file a complaint with the police.

fax

In addition to sending advertising in the narrower sense, “information” is often distributed with fraudulent intent, which indicates in the footer that if there is a lack of interest, future sending can be avoided by sending the fax back to a specified value-added service number . The initiator of fax advertising earns money from the proceeds from the value-added service number . In Germany, to combat the sending of unsolicited advertising, Section 13a was added to the Telecommunications Customer Protection Ordinance (TKV) with effect from August 28, 2002. Accordingly, everyone who has given a customer a value-added service number for use is obliged to immediately take appropriate measures to prevent legal violations, including blocking the improperly used value-added service number. In 2003 a number of civil proceedings were carried out. As a result, the number of complaints in the area of fax advertising with consumer service decreased significantly.

Unwanted faxes cause electricity and paper costs and block the fax machine. Therefore, like unwanted calls, they are not allowed. The use of an advertising fax to acquire new customers is therefore not possible.

Smartphone / apps

Technologies with which users are deprived of the power of disposal over their end devices (in particular netbooks , smartphones , tablet computers ), mostly with the help of apps or corresponding operating system features , are barely legally recorded . This is how advertising appears that has to be consumed over a long period of time without being able to be switched off.

Legal position

The sending of personally addressed advertising mail as letter post is not legally restricted in Germany. Harassing a consumer with unsolicited advertising constitutes a violation of the recipient's personal rights and justifies a right to cease and desist, but normally no claim to payment of compensation. The District Court Flensburg has ruled that the owner of a mailbox, with an indication as any Advertisement is provided before the first throw-in by non-personally-addressed advertising material an injunction has.

Unwanted advertising to an entrepreneur violates the right to the established and exercised commercial enterprise if there is no regular business relationship.

According to a legally binding ruling by the Lüneburg Regional Court on November 4, 2011 (4 S 44/11), a declaration of intent in the form of an objection to the sender of the unsolicited advertising is sufficient, as a sticker can mean that even desired advertising is no longer delivered . A lawyer had contradicted the delivery of the mail piece “ kaufaktuell ”to Deutsche Post AG. Since this did not stop the service despite the objection, there was an action for injunctive relief, which was upheld in the second instance.

literature

Federal Office for Information Security: bsi.bund.de - Study on Antispam Strategies (PDF; 1.6 MB)
The Federal Commissioner for Data Protection and Freedom of Information: Address Trading and Unwanted Advertising , PDF with 2 MB, bfdi.bund.de, accessed on February 15, 2018
Engels, Thomas (lawyer): Advertising by fax - How not to do it ... - Contribution to the legal situation with fax spam according to the old and new UWG. upright.de/3991

Web links

Commons : Unwanted Publicity - Album with pictures, videos and audio files

Germany

Unwanted call - Robinson lists are supposed to protect against annoying advertising , at bundestag.de

Austria

Umweltberatung.at/werbung - "die Umweltberatung": Information on measures against unwanted advertising in Austria

Individual evidence

↑ http://jvm-wozi.de/2011/12/8-12-2011-spendenaufruf/

↑ 123recht.net

^ Judgment of the LG Lüneburg from November 4, 2011 (Az. 4 S 44/11)

↑ BGH, judgment of December 20, 1988 ( Memento of the original of July 18, 2014 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. , Az. VI ZR 182/88; Full text. @1@ 2

^ Robinson list online , information on protection against unwanted advertising and creation of a protection account

↑ DDV Robinson list , here you can register directly online or download and print out an application for membership as a PDF file, which, with the relevant personal data, is to be sent by post to the DDV Robinson list (accessed on October 3, 2015)

↑ Brochure “Unaddressed Mail” ( Memento of the original from July 22, 2012 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. , P. 8. (PDF; 1.3 MB) @1@ 2