Unreasonable harassment

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In German fair trading law, various types of advertising are referred to as unreasonable harassment , which are covered by Section 7 UWG .

overview

§ 7 UWG serves to protect the privacy of consumers and the undisturbed business processes of companies. To what extent itprotects the freedom of choice of market participants is controversial. The case group of harassment was already recognized by the case law according to § 1 UWG old version. With the UWG amendment 2004, it wascodifiedas a specification of the new general clause (§ 3 UWG old version) in § 7 UWG old version. With the reform of 2008, the norm underwent extensive changes: It is no longer a mere specification of the general clause in Section 3 (1) UWG, but an independent fact that in itself constitutes unfairness ( Section 8 (1) UWG). This is due to the fact that the guideline relevant for the UWG reform 2008 only knows about misleading and aggressive business practices and not about harassment as such.

Offense

Section 7 (2) UWG lists those harassments that are always unfair. This includes letter and flyer advertising (No. 1), telephone advertising such as slamming (No. 2) and fax / e-mail advertising (No. 3), as well as all types of direct mail thatviolatethe transparency requirement (No. 4 ). Depending on the type of advertising, different consent requirements are used to justify the unfairness. In the case of e-mail advertising, the addressee must have given express prior consent (but see Section 7 (3) UWG).

Section 7 (1) UWG, with its general clause, covers all those cases that are not covered by Section 7 (2) UWG. This applies above all to addressing them in public and visiting representatives . The Federal Court of Justice considers the formerto be louder if the advertiser identifies himself as such. If he does not do this, there is an unfair "sneaking of attention". Due to their long tradition, visits by representatives have so far been considered permissible, but this has attracted significant criticism, especially in recent times.

Individual evidence

  1. ↑ For this : Köhler / Bornkamm, UWG. 30 ed. § 7 marginal no. 3; Fezer / Mankowski § 7 marginal note 24 Against : Piper / Ohly / Sosnitza, UWG. 5 ed. § 7 marginal no. 1; MüKo / Leible § 7 marginal number 1.
  2. ^ Critical to the whole: Fezer, WRP 2010, 1075.
  3. ↑ BGH, judgment of April 1, 2004, Az. I ZR 227/01, full text = GRUR 2004, 699, 701 - public address I
  4. ↑ BGH, judgment of September 9, 2004, Az. I ZR 93/02, full text = GRUR 2005, 443, 444 f. - Public Address II; see Hartwig CR 2005, 340.
  5. ↑ with further references: Reich, GRUR 2011, 589.